MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 1 of 86 PageID #: 6274 Michael J. Green (HI Bar No. 4451) 841 Bishop Street, Suite 2201 Honolulu, HI 96813 Telephone: 808-521-3336 Facsimile: 808-566-0347 Email: michaeljgreen@hawaii.rr.com Nicholas C. Yost (CA Bar No. 35297) Matthew G. Adams (CA Bar No. 229021) Admitted pro hac vice SNR Denton US LLP 525 Market Street, 26th Floor San Francisco, CA 94105 Telephone: 415-882-5000 Facsimile: 415-882-0300 Email: nicholas.yost@snrdenton.com matthew.adams@snrdenton.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HONOLULUTRAFFIC.COM; CLIFF SLATER; BENJAMIN J. CAYETANO; WALTER HEEN; HAWAII’S THOUSAND FRIENDS; THE SMALL BUSINESS HAWAII Case No. 11-00307 AWT ENTREPRENEURIAL EDUCATION FOUNDATION; RANDALL W. ROTH; and DR. MEMORANDUM IN MICHAEL UECHI, SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY Plaintiffs, JUDGMENT v. FEDERAL TRANSIT ADMINISTRATION; LESLIE ROGERS, in his official capacity

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 2 of 86 PageID #: 6275 as Federal Transit Administration Regional Administrator; PETER M. ROGOFF, in his official capacity as Federal Transit Administration Administrator; UNITED STATES DEPARTMENT OF TRANSPORTATION; RAY LAHOOD, in his official capacity as Secretary of Transportation; THE CITY AND COUNTY OF HONOLULU; WAYNE YOSHIOKA, in his official capacity as Director of the City and County of Honolulu Department of Transportation. Defendants.

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 3 of 86 PageID #: 6276 TABLE OF CONTENTS Page(s)I. INTRODUCTION .........................................................................................1II. FACTUAL BACKGROUND........................................................................2III. LEGAL BACKGROUND .............................................................................6 A. Section 4(f) ..........................................................................................6 B. NEPA...................................................................................................8 C. NHPA ..................................................................................................9IV. STANDARD OF REVIEW.........................................................................10 A. Summary Judgment...........................................................................10 B. NEPA, Section 4(f), NHPA, and the APA........................................10V. ARGUMENT...............................................................................................12 A. Plaintiffs Have Standing....................................................................12 B. Defendants’ Approval Of The Project Is A Final Agency Action Subject To Review Under The APA .....................................12 C. Defendants Violated Section 4(f)......................................................13 1. Defendants Failed To Identify And Evaluate The Project’s Use Of Native Hawaiian Burials And Other Traditional Cultural Properties Before Approving The Project (Count 5) ...........................................14 a) Defendants Failed Fully To Identify And Evaluate Iwi Kupuna Prior To Issuing The ROD, Thereby Violating Section 4(f) ..........................15 b) Defendants Failed Fully To Survey, Identify, And Evaluate TCPs Prior To Approving The Project, Thereby Violating Section 4(f) ...................................................................19 2. Defendants Arbitrarily And Capriciously Evaluated The Project’s Use Of Section 4(f) Resources (Count 6)................................................................21 a) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Directly Use The Merchant Street Historic District ..........................................................................21 -i-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 4 of 86 PageID #: 6277 b) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Constructively Use 4(f) Resources ...............................22 (i) Aloha Tower.......................................................23 (ii) Walker Park........................................................26 (iii) Merchant Street Historic District .......................28 (iv) Irwin Park ...........................................................30 (v) Mother Waldron Neighborhood Park.................32 c) Defendants’ Evaluation Of Makalapa Navy Housing Was Arbitrary And Capricious In Multiple Respects .........................................................34 d) Defendants’ Arbitrary And Capricious Use Determinations Were Not “Harmless Error”................37 3. Defendants Approved The Project In Violation Of Section 4(f) (Count 7) .............................................................37 a) Defendants Failed To Demonstrate The Absence Of Prudent And Feasible Alternatives To The Project’s Use Of 4(f) Resources ......................................................................38 (i) Managed Lanes Alternative ...............................41 (ii) Downtown Tunnel..............................................45 (iii) Alternative Transit Technologies .......................47 b) Defendants Failed To Include All Possible Planning To Minimize Harm........................................49 D. Defendants Violated NEPA ..............................................................51 1. Defendants Defined The Purpose And Need For The Project So Narrowly As To Preclude Consideration Of Reasonable Alternatives (Count 1) .............................................................................................51 2. Defendants Failed To Consider Reasonable Alternatives To The Project (Count 2) ...................................54 a) Defendants Impermissibly Relied On The City’s Early Planning Efforts .......................................56 b) Defendants Arbitrarily And Capriciously Refused To Consider The MLA ...................................59 - ii -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 5 of 86 PageID #: 6278 (i) The City’s Original Decision To Eliminate The MLA From Detailed Consideration Was Arbitrary And Capricious...........................................................59 (ii) Defendants’ Refusal to Reconsider The City’s Decision To Eliminate The MLA From Detailed Consideration Was Also Arbitrary And Capricious. .................62 c) Defendants Impermissibly Limited Their Consideration Of Alternatives To Steel Wheel On Steel Rail Technology .................................63 d) Defendants Impermissibly Refused To Consider Alternatives Requiring Action By The Honolulu City Council ..........................................65 3. Defendants Failed Properly To Evaluate The Environmental Consequences Of The Project And Alternatives Thereto (Count 3) ...............................................66 4. Defendants Impermissibly Segmented Their NEPA Analysis (Count 4) ..................................................................68 E. Defendants Violated NHPA ..............................................................71VI. CONCLUSION............................................................................................74 - iii -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 6 of 86 PageID #: 6279 TABLE OF AUTHORITIES Page(s)FEDERAL CASES‘Ilio’ulaokaokalani Coalition v. Rumsfeld 464 F.3d 1083 (9th Cir. 2006) ......................................................................54, 55Adler v. Lewis 675 F.2d 1085 (9th Cir. 1982) ............................................................................22Alaska Wilderness Recreation and Tourism Association v. Morrison 67 F.3d 723 (9th Cir. 1995) ....................................................................54, 58, 64Alpine Lakes Protection Society v. Schalpfer 518 F. 2d 1089 (9th Cir. 1975) ...........................................................................68Anderson v. Liberty Lobby 477 U.S. 242 (1986)............................................................................................10Benton Franklin Riverfront Trailway And Bridge Committee v. Lewis 701 F.2d 784 (9th Cir. 1983) ........................................................................19, 20Brooks v. Volpe 460 F.2d 1193 (9th Cir. 1972) ............................................................................22California v. Block 690 F.2d 753 (9th Cir. 1982) ..............................................................................56Celotex Corp. v. Catrett 477 U.S. 317 (1986)............................................................................................10Citizens to Preserve Overton Park v. Volpe 401 U.S. 402 (1971)....................................................................................6, 7, 11Corridor H Alternatives v. Slater 166 F. 3d 368 (D.C. Cir. 1999)...............................................................14, 19, 20Daly v. Volpe 514 F.2d 1106 (9th Cir. 1975) ............................................................................68 - iv -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 7 of 86 PageID #: 6280Davis v. Mineta 302 F.3d 1104 (10th Cir. 2002) ....................................................................51, 68Friends of the Earth v. Laidlaw Environmental Services 528 U.S. 167 (2000)............................................................................................12Friends of Yosemite Valley v. Kempthorne 520 F.3d 1024 (9th Cir. 2008) ......................................................................54, 55Hammond v. Norton 370 F. Supp. 2d 226 (D.D.C. 2005)....................................................................69Massachusetts v. E.P.A. 549 U.S. 497 (2007)............................................................................................12Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. 463 U.S. 29 (1983).......................................................................................passimMuckleshoot Indian Tribe v. United States Forest Service 177 F.3d 800 (9th Cir. 1999) ..............................................................................66Named Individual Members Of San Antonio Conservation Society v. Texas Highway Department 446 F.2d 1021 (5th Cir. 1971) ...............................................................19, 70, 71National Parks & Conservation Association v. United States Department Of The Interior 606 F.3d 1058 (9th Cir. 2010) ...............................................................51, 52, 53Natural Resources Defense Council v. United States Forest Service 421 F.3d 797 (9th Cir. 2005) ........................................................................54, 61North Idaho Community Action Network v. United States Department of Transportation 545 F.3d 1147 (9th Cir. 2008) .....................................................................passimNorthern Plains Resource Council v. Surface Transportation Board 668 F.3d 1067 (9th Cir. 2011) ............................................................................10Ocean Advocates v. United States Army Corps of Engineers 402 F.3d 846 (9th Cir. 2004) ..............................................................................11 -v-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 8 of 86 PageID #: 6281Oregon Natural Desert Association v. Bureau of Land Management 625 F.3d 1092 (9th Cir. 2010) ............................................................................12San Carlos Apache Tribe v. United States 417 F.3d 1091 (9th Cir. 2005) ............................................................................10Sausalito v. O’Neill 386 F.3d 1186 (9th Cir. 2004) ............................................................................11Simmons v. United States Army Corps of Engineers 120 F.3d 664 (7th Cir. 1997) ..............................................................................52Southeast Alaska Conservation Council v. Federal Highway Administration 649 F.3d 1050 (9th Cir. 2011) ................................................................54, 61, 62Stop H-3 Ass’n v. Coleman 533 F.2d 434 445 (9th Cir. 1976) .......................................................................22Thomas v. Peterson 753 F. 2d 754 (9th Cir. 1985) .............................................................................68Valley Community Preservation Commission v. Mineta 373 F.3d 1078 (10th Cir. 2004) ....................................................................14, 20FEDERAL STATUTES5 U.S.C. § 704....................................................................................................12, 135 U.S.C. § 706....................................................................................................11, 1316 U.S.C. § 470f.........................................................................................................923 U.S.C. § 139.................................................................................................passim42 U.S.C. § 4332(2) ..........................................................................................passim49 U.S.C. § 303(c) ............................................................................................passimOTHER STATE STATUTESHaw. Rev. Stat. § 13-300-21....................................................................................15OTHER AUTHORITIES23 C.F.R. § 771.135(i) ...............................................................................................8 - vi -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 9 of 86 PageID #: 628223 C.F.R. § 771.135(b) ..............................................................................................723 C.F.R. § 774.3 ..............................................................................................passim23 C.F.R. § 774.7 .........................................................................................39, 40, 4423 C.F.R. § 774.9 ...................................................................................13, 14, 20, 2223 C.F.R. § 774.11 ............................................................................................passim23 C.F.R. § 774.15 ............................................................................................passim23 C.F.R. § 774.17 ............................................................................................passim36 C.F.R. § 60.4 .......................................................................................................1536 C.F.R. § 800.4 .....................................................................................................2036 C.F.R. § 800.5 ...................................................................................10, 71, 72, 7336 C.F.R. § 800.6 ...............................................................................................10, 7336 C.F.R. § 800.8 .....................................................................................................2036 C.F.R. § 800.16 ...................................................................................................7140 C.F.R. § 1500.1 .................................................................................................8, 940 C.F.R. § 1505.2 ...................................................................................................1340 C.F.R. § 1502.4 .............................................................................................68, 6940 C.F.R. § 1502.10 ...................................................................................................940 C.F.R. § 1502.13 .......................................................................................8, 51, 5240 C.F.R. §1502..14 ..........................................................................................passim40 C.F.R. §1502.16 ....................................................................................8, 9, 66, 6740 C.F.R. § 1506.1 .....................................................................................................940 C.F.R. § 1508.7 .....................................................................................................940 C.F.R. § 1508.8 .....................................................................................................9 - vii -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 10 of 86 PageID #: 6283 40 C.F.R. § 1508.25(a)(1) ............................................................................68, 69, 70 46 Fed. Reg. 18026, 18027 (Mar. 17, 1981)........................................................8, 66 73 Fed. Reg. 13368 (March 12, 2008) .........................................................23, 39, 44 Fed. R. Civ. P. 56 .....................................................................................................10 - viii -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 11 of 86 PageID #: 6284I. INTRODUCTION This is a case in which the law to be applied is as simple as the administrative record is long. In enacting Section 4(f) of the Department of Transportation Act (“Section 4(f)”), the National Environmental Policy Act (“NEPA”), and the National Historic Preservation Act (“NHPA”), Congress has clearly required that agencies must identify, evaluate, disclose, and, in some cases, avoid the environmental impacts of major projects like the one at issue in this litigation. But in their zeal to construct the Honolulu High- Capacity Transit Corridor Project — an elevated heavy rail line1 considered to be the largest public works project in the history of Hawaii — Defendants have violated those requirements in an equally clear fashion. Pursuing their ill-conceived course of conduct, Defendants managed to violate three of the bedrock statutory embodiments of America’s system of environmental protection: • Defendants violated Section 4(f) by ignoring their responsibility to identify historic resources and parklands potentially affected by the Project, by improperly evaluating the resources they couldn’t 1 The Project is no ordinary rail line. Its primary component is a concrete viaduct known as a “fixed guideway,” which is proposed to be approximately 35 to 50 feet tall (roughly the same height as a 3 or 4 story building). AR 000247 at 000338-64. The guideway would run through the historic waterfront core of downtown Honolulu and west to a small, agricultural community known as Kapolei, creating a massive concrete barrier along the entire route. Other components of the project include 21 new rail stations (each the height of a 6 story building), four “transit centers” (combined bus and train stations), approximately 40 acres of parking lots, and a 44-acre industrial facility for railcar maintenance and storage. Id. -1-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 12 of 86 PageID #: 6285 conveniently ignore, and by inaccurately, arbitrarily, and capriciously concluding that they had no choice but impact highly sensitive historic areas in Honolulu’s downtown core in direct contravention of Section 4(f)’s substantive mandate to avoid such sites if feasible and prudent alternatives exist, which they do. • Defendants’ violations of NEPA also center on alternatives: They structured their statement of project purpose so narrowly as to preclude consideration of reasonable alternatives; they failed rigorously to explore any of the scores of reasonable alternatives to the Project; they failed properly to evaluate the environmental consequences of alternatives; and they impermissibly segmented the Project into smaller pieces so as to prevent an analysis of the true impacts of and alternatives to Honolulu’s proposed rail system. • Defendants violated NHPA by failing to address the possibility that the Project would indirectly affect historic resources by leading to the demolition and/or redevelopment of historic areas near new rail stations, a possibility that was well-known to them throughout their consideration of the Project. • With respect to all three statutes, the Federal defendants improperly abdicated their statutory responsibilities to the City. Accordingly, for the detailed reasons set forth below, Plaintiffs are therefore entitled to summary judgment.II. FACTUAL BACKGROUND The Project has been characterized by complex paperwork and strong disagreement. But the underlying material facts are neither complicated nor subject to dispute. -2-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 13 of 86 PageID #: 6286 The City has long sought to develop a rapid transit system linking the historic core of Honolulu with a predominantly-agricultural area known as Kapolei. AR 000247 at 000293-95. In 2003, the City and FTA issued an Environmental Impact Statement evaluating different options for such a system. AR 047927 at 047953-80. Ultimately, the City and FTA concluded that a Bus Rapid Transit (or “BRT”) system would provide the best approach to transit within the Honolulu-Kapolei corridor. Id. Two years later, however, the City changed its focus to the development of a different transit system. With that goal in mind, the City undertook an Alternatives Analysis or “AA.” AR 000247 at 000295-96; AR 009434- 009555. The AA included a screening process designed to identify a range of reasonable transit alternatives. Id.; 009556-683. The City identified a number of feasible transit technologies as well as more than 75 possible transit routes. Id. The City then selected its preferred options from among the identified alternatives. AR 000247 at 000296; AR 009434 at 009537-49. Options not selected were eliminated from further consideration. Options eliminated from consideration included bus rapid transit, a system of “managed lanes” (essentially, express lanes for buses and high-occupancy vehicles), ferries, and all but two of the 75 identified transit routes. AR 000247 at 000319-27. -3-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 14 of 86 PageID #: 6287 The City documented its analyses and conclusions in a series or reports, memoranda, and technical studies. AR 009434-009555; AR 009556-009683; AR 049484-731. These documents do not reflect any significant involvement or guidance by the FTA. Id. After eliminating from consideration most of the alternatives identified in the AA, the City announced a plan to prepare (together with FTA) an Environmental Impact Statement (“EIS”) pursuant to NEPA. AR 009696 - 009699. The announcement indicated that the EIS would evaluate three alternatives: (1) an alternative consisting of an elevated fixed guideway transit system following a route from East Kapolei to Ala Moana Center, (2) an alternative consisting of an elevated fixed guideway transit system following that same route except with a connection to the airport, and (3) a “no build” alternative. AR 009696 at 9698. The announcement also noted that the Draft EIS “would consider five distinct transit technologies: Light rail transit, rapid rail transit, rubber-tired guided vehicles, a magnetic levitation system, and a monorail system.” Id. In 2008, the City convened a Panel of Experts to provide recommendations for choosing among these five technologies. AR 000247 at 000331. By a four-to-one vote, the City’s experts “selected steel wheel operating on steel rail as the technology for the Project to be considered in [the City’s and FTA’s] EIS.” Id. In other words, the City eliminated the other -4-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 15 of 86 PageID #: 6288 transit technologies. There is no record of FTA having participated in the vote. After eliminating from all transit technologies except “steel wheel on steel rail” from consideration, the City (now jointly with FTA) released a Draft EIS for public review and comment. AR 000247 at 000331; AR 007223. The Draft EIS evaluated four alternatives: (1) an elevated heavy rail (steel wheel on steel rail) line following a route from East Kapolei to Ala Moana Center, (2) an elevated heavy rail (steel wheel on steel rail) line following the same route from East Kapolei to Ala Moana Center except with a detour to the airport, and (3) an elevated heavy rail line from East Kapolei to Ala Moana Center incorporating both of the first two routes, and (4) no action. See AR 000247 at 000331-337. The City and FTA received hundreds of comments on the Draft EIS (“DEIS”). AR 000247 at 000855 to 004076. Many commenters requested that the agencies reconsider alternatives which had been eliminated from consideration during the AA or by the City’s panel of experts. The City and FTA did not reconsider those alternatives. See, e.g., AR 000247 at 002018-31 (requesting reconsideration of managed lanes), 002087-93 (no reconsideration). The City and FTA then prepared a Final EIS (“FEIS”). See AR 000247. The FEIS contained the same alternatives as the DEIS. AR 000247 at 000331- -5-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 16 of 86 PageID #: 6289 338. Because the Project implicates the requirements of Section 4(f) of the Department of Transportation Act (“Section 4(f)”), the FEIS also contained an evaluation of the Project’s potential to take or “use” land from historic resources and/or public parks (“4(f) Resources”). AR 000247 at 000680. The 4(f) Evaluation concluded that the Project would, in fact, use historic resources in downtown Honolulu, including the Chinatown Historic District. AR 000247 at 000718-27. As part of their approval of the Project, FTA and the City issued a finding declaring that there are no alternatives to the use of downtown Honolulu’s 4(f) Resources. AR 000030 at 000041-42. Plaintiffs then filed suit.2III. LEGAL BACKGROUND A. Section 4(f) Section 4(f) declares a national policy that “special effort should be made to preserve…public park and recreation lands…and historic sites.” See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 404-06 n.1-2 (1971) (discussing policy and purpose of Section 4(f)). Under this policy, Section 4(f) resources (including, as relevant here, both parks and historic sites) are “to be 2 Plaintiffs timely filed their original complaint on May 12, 2011. On December 30, 2011, Plaintiffs requested leave to file an amended complain. Plaintiffs’ First Amended Complaint would add as a party The Outdoor Circle, a non-profit environmental organization. The First Amended Complaint would not make substantive changes; therefore, the arguments in this Motion for Summary Judgment are equally relevant to either version of the complaint. -6-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 17 of 86 PageID #: 6290 given paramount importance.” Citizens to Preserve Overton Park, 401 U.S. at 412-13. But Section 4(f) is not merely declaration of policy. It imposes a substantive mandate on federal decisionmakers. See 49 U.S.C. § 303(c); Citizens to Preserve Overton Park, 401 U.S. at 411; North Idaho Community Action Network v. United States Department of Transportation, 545 F.3d 1147, 1158 (9th Cir. 2008).3 Specifically, Section 4(f) prohibits federal agencies from funding or approving transportation projects requiring the use of a park or historic site unless (1) there is “no prudent and feasible alternative” and (2) the project includes “all possible planning to minimize harm.” 49 U.S.C. § 303(c). The Supreme Court has characterized this mandate as “a plain and explicit bar” to the use of federal funds for project impacting Section 4(f) resources. Citizens to Preserve Overton Park, 401 U.S. at 411.4 Federal agencies are required to implement Section 4(f) by surveying, identifying, and evaluating parks and historic sites. See N. Idaho Community Action Network, 545 F.3d at 1158. This evaluation must be undertaken during the agency’s consideration of project alternatives. Id.; see also 23 C.F.R. § 771.135(b). And it must be completed before the agency issues a Record of 3 In this respect section 4(f) differs from NEPA and NHPA, which are primarily procedural. See North Idaho, 545 F. 3d at 1158. 4 It has also observed that “only the most unusual situations” will satisfy the two exemptions to that bar. Citizens to Preserve Overton Park, 401 U.S. at 411. -7-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 18 of 86 PageID #: 6291 Decision on the project. North Idaho, 545 F.3d at 1158-59; see also 23 C.F.R. § 771.135(i). B. NEPA NEPA is our nation’s “basic charter for the protection of the environment.” 40 C.F.R. § 1500.1. It requires federal agencies prepare an Environmental Impact Statements (“EIS”) on any “major Federal actions significantly affecting the human environment.” 42 U.S.C. § 4332(2)(C). Required elements of an EIS include a description of the proposed Federal action; a detailed discussion of the proposed action’s environmental consequences; and an analysis of alternatives to the proposed action (and the environmental impacts of such alternatives). 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1502.13, 1502.14, 1502.16. The analysis of alternatives is “the heart” of an EIS. 40 C.F.R. § 1502.14. Federal agencies have an affirmative obligation to “[r]igorously explore and objectively evaluate all reasonable alternatives.” Id. (emphasis added). According to the Council on Environmental Quality (“CEQ”), which oversees NEPA compliance government-wide, Reasonable alternatives “include those that are practical or feasible from the technical and economic standpoint, rather than simply desirable from the standpoint of the applicant” for a federal approval. 46 Fed. Reg. 18026, 18027 (Mar. 17, 1981) (emphasis original). In evaluating the environmental impacts of “all reasonable -8-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 19 of 86 PageID #: 6292 alternatives,” federal agencies must consider each and every reasonably foreseeable direct, indirect, and cumulative effect of a proposed action. 42 U.S.C. § 4332(2); 40 C.F.R. §§ 1502.10, 1502.14, 1502.16, 1508.7, 1508.8.5 All NEPA analyses must be “available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b) (emphasis added). Indeed, NEPA imposes on Federal agencies an affirmative responsibility to make sure no party takes any action that could (1) adversely impact the environment or (2) limit the Federal agency’s choice of reasonable alternatives until the entire NEPA process is complete. See 40 C.F.R. § 1506.1(a). C. NHPA NHPA requires all federal agencies to “take into account” the impact of their actions on historic properties, including sites listed on or eligible for listing on the National Register of Historic Places. 16 U.S.C. § 470f. When an agency proposes to take an action that could adversely affect one or more historic properties, the agency must “develop and evaluate alternatives or 5 Direct effects are “caused by the action and occur at the same time and place.” 40 C.F.R. § 1508.8. Indirect effects are “caused by the action” but are “later in time or farther removed in distance.” Id. Indirect effects “may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems.” Id. Cumulative effects refer to “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. -9-

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 20 of 86 PageID #: 6293 modifications to the [action] that could avoid, minimize or mitigate [any] adverse effects.” 36 C.F.R. § 800.6(a). This requirement applies equally to direct adverse effects and to indirect adverse effects. 36 C.F.R. § 800.5.IV. STANDARD OF REVIEW A. Summary Judgment Summary judgment is proper where no genuine issues of material fact exist and the moving party is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The materiality of a fact is determined by referring to applicable substantive law. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). B. NEPA, Section 4(f), NHPA, and the APA The legal requirements at issue in this case are those imposed by NEPA, Section 4(f), and NHPA. Claims under these three statutes are reviewed under the Administrative Procedure Act (“APA”). See Northern Plains Resource Council v. Surface Transportation Board, 668 F.3d 1067, 1074 (9th Cir. 2011) (NEPA claims); North Idaho, 545 F.3d 1147, 1152 (9th Cir. 2008) (Section 4(f) claims); San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1096 (9th Cir. 2005) (NHPA claims). The APA provides that reviewing courts must “hold unlawful and set aside agency action, findings, and conclusions found to be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the - 10 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 21 of 86 PageID #: 6294 law.” 5 U.S.C. § 706(2)(A). An agency’s action is arbitrary and capricious if it is based on “factors which Congress has not intended [the agency] to consider,” if the agency has “entirely failed to consider an important aspect of the problem,” if the agency offers “an explanation for its decision that runs counter to the evidence,” or if the agency’s actions are “so implausible that [they] could not be ascribed to…agency expertise.” Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983); Sausalito v. O’Neill, 386 F.3d 1186, 1205-06 (9th Cir. 2004). The “arbitrary and capricious” standard requires a “thorough, probing, in-depth review” of agency decisionmaking. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971). Although a reviewing court should not substitute its judgment for that of the agency, neither can it simply “rubber stamp” agency decisions. See Ocean Advocates v. United States Army Corps of Engineers, 402 F.3d 846, 859 (9th Cir. 2004). Indeed, judicial review must be “searching and careful.” Overton Park, 401 U.S. at 416. And reviewing courts “should not attempt to make up for deficiencies” in agency decisions by “supply[ing] a reasoned basis for the agency’s action that the agency itself has not given.” Motor Vehicle Manufacturers, 463 U.S. at 43. - 11 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 22 of 86 PageID #: 6295V. ARGUMENT A. Plaintiffs Have Standing In order to establish standing to sue, a plaintiff must demonstrate that (1) he will suffer an “injury in fact” in the absence of judicial relief, (2) the injury is “fairly traceable…to the challenged action of the defendant”, and (3) a favorable judicial ruling will likely redress his injury. See Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 180-81 (2000). A case may proceed so long as at least one plaintiff has standing. Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007). Plaintiffs meet all three requirements. They have provided standing affidavits demonstrating that they will suffer procedural, environmental, aesthetic, recreational, and economic injuries in the absence of judicial relief. Declaration of Matthew Adams (“Adams Dec.”), ¶ 2, Ex. A. Those injuries are traceable to the challenged action of the Defendants —namely, the approval of the Project. Id. A favorable ruling in this case would invalidate Defendants’ approval of the Project, thereby redressing Plaintiffs’ injuries. Id. Therefore, Plaintiffs have standing. B. Defendants’ Approval Of The Project Is A Final Agency Action Subject To Review Under The APA The APA provides for judicial review of “final agency action.” 5 U.S.C. § 704. A ROD is a final agency action. Oregon Natural Desert Association v. Bureau of Land Management, 625 F.3d 1092, 1118 (9th Cir. 2010); see also - 12 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 23 of 86 PageID #: 6296 40 C.F.R. § 1505.2 (ROD must memorialize final agency decision). Defendants approved the Project by issuing a ROD. AR 000030-000246. That approval is therefore subject to review under the APA. 5 U.S.C. §§ 704, 706. C. Defendants Violated Section 4(f) Section 4(f) prohibits the United States Department of Transportation and its component agencies from approving a transportation project that uses 4(f) Resources unless (1) there is “no feasible and prudent alternative” and (2) the project includes “all possible planning to minimize harm.” 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. Implicit in that mandate are three conceptually-distinct (though certainly not unrelated) requirements: • First, Department of Transportation agencies must identify all 4(f) Resources that could be used by a transportation project. 23 C.F.R. §§ 774.9, 774.11. • Second, Department of Transportation agencies must properly evaluate the potential for a transportation project to use 4(f) Resources. 23 C.F.R. §§ 774.9, 774.15, 774.17. • Third, for any project that could use 4(f) Resources, Department of Transportation agencies must properly evaluate alternatives and measures to minimize harm to ensure that (1) there are no feasible and prudent alternatives and (2) all possible planning to minimize harm has been adopted. 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. Here, Defendants failed at each of the three steps in this analytical process: - 13 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 24 of 86 PageID #: 6297 • Defendants failed to identify (or even to look for) Native Hawaiian burials and Traditional Cultural Properties (“TCPs”), both of which are 4(f) Resources. See § V.C.1, below. • Defendants failed properly to evaluate the Project’s potential to use numerous parks and historic sites, all of which are 4(f) Resources. See § V.C.2, below. • Defendants approved the Project without properly considering (and selecting) feasible and prudent alternatives capable of avoiding the use of 4(f) Resources and without including all possible planning to minimize harm. See § V.C.3, below. Therefore, Plaintiffs are entitled to summary judgment. 1. Defendants Failed To Identify And Evaluate The Project’s Use Of Native Hawaiian Burials And Other Traditional Cultural Properties Before Approving The Project (Count 5) Section 4(f) requires Department of Transportation agencies to survey, identify, and evaluate 4(f) Resources before approving a transportation project. The Section 4(f) Regulations provide that such an analysis must be completed prior to project approval. 23 C.F.R. § 774.9(a), (b); see also North Idaho, 545 F.3d at 1159, n.7 (4(f) Resources must be identified and evaluated prior to project approval); Valley Community Preservation Commission v. Mineta, 373 F.3d 1078, 1087-88 (10th Cir. 2004) (same); Corridor H Alternatives v. Slater, 166 F. 3d 368, 372-74 (D.C. Cir. 1999) (same). Here, Defendants approved the Project before identifying and evaluating iwi kupuna (Native Hawaiian - 14 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 25 of 86 PageID #: 6298 burials) and other TCPs.6 Therefore, Plaintiffs are entitled to summary judgment. a) Defendants Failed Fully To Identify And Evaluate Iwi Kupuna Prior To Issuing The ROD, Thereby Violating Section 4(f) In Hawaiian culture, burial is a process allowing an individual’s spiritual power to become a spiritual resource for the entire community. AR 125000 at 125001. In this way, ancestral remains (iwi kupuna) provide an important spiritual connection between the living, their ancestors, and the community as a whole. Id. The Oahu Island Burial Council (“OIBC”), a state agency charged with the protection of historic properties of importance to the Native Hawaiian community,7 has characterized the disruption of iwi kupuna as “akin to disrobing a living person and physically handling them against their will.” Id. Iwi kupuna are eligible for listing in the National Register of Historic Places. See 36 C.F.R. § 60.4 (Register eligibility criteria and “criteria considerations”); Adams Dec., ¶ 3, Ex. B at 1 (eligibility as TCP); see also AR 00030 at 000085 (Programmatic Agreement admits Register eligibility of 6 TCPs are resources “eligible for inclusion in the National Register because of [] association with cultural practices or beliefs of a living community that (a) are rooted in the community’s history, and (b) are important in maintaining the continuing cultural identity of the community.”6 Adams Dec., ¶ 3, Ex. B at 1. Iwi kupuna are a subset of TCPs. The fact that iwi kupuna are TCPs is one of the bases (but not the only basis) for their protection under Section 4(f). 36 C.F.R. § 60.4. 7 See Haw. Rev. Stat. § 13-300-21. - 15 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 26 of 86 PageID #: 6299 archaeological sites). Therefore, they are 4(f) Resources. 23 C.F.R. §§ 774.11(e), 774.17 (definition of historic sites includes Register-eligible resources). Defendants had ample notice of the importance of evaluating the Project’s potential to damage or destroy (or, using the sanitized language of Section 4(f), the potential to “use”) iwi kupuna. For example: • The OIBC pointed out that the Project would traverse several areas known to contain significant concentrations of iwi kupuna, and noted the City’s failure fully to investigate the impact of the Project on those sites “has needlessly placed iwi kupuna in harm’s way and diminished the ability of laws such as [Section] 4(f) to protect them.” AR 125000 at 125005. • The National Park Service expressed concerns about Defendants’ failure to prepare a complete archaeological survey and asked “wouldn’t it be prudent to complete the [survey] and know where burials are located ASAP?” AR 125208 at 125210. • The National Trust for Historic Preservation sent the City a letter expressing “extreme” concern regarding “the City’s decision to defer detailed identification of historic properties” until after the ROD, citing case law prohibiting such an approach. See AR 124858 at 124858-59. • FTA’s own environmental staff expressed concerns about the “casual treatment of burials in the [Section] 4(f) evaluation and the quick once- over in the resources section [of the EIS].” AR 124645. - 16 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 27 of 86 PageID #: 6300 It is important to note that the Defendants received each of these four comments in October, 2009. AR 124645, 124858, 125000, 125208. The ROD was not issued until January 18, 2011. AR 000030. In other words, after receiving these comments, Defendants had more than a year in which to fully survey, identify, and evaluate the Project’s potential to damage or destroy iwi kupuna. Instead, they did nothing.8 Rather than undertaking any additional analysis, Defendants simply relied on a previously-prepared Archaeological Inventory Survey (“AIS”) addressing the westernmost 7.4 miles of the Project. AR 0059459 at 0059478-88 (scope of AIS). No such survey was prepared for the other 15 or so miles of the rail line, despite the fact that burials were deemed likely to exist there. Id.; see also AR 000030 at 000085, 000092-95 (phased approach to identification and evaluation of iwi kupuna); 000247 at 000691 (burials deemed likely). Defendants deferred that work until the “construction phase” of the Project. AR 000030 at 000085 (“phased approach to identification and evaluation”); see also AR 000247 at 000691 (final Section 4(f) evaluation does not include analysis of iwi for entire Project). In 8 Actually, the City didn’t exactly do nothing. Upon receiving constructive feedback from four authoritative, interested parties (OIBC, the National Trust For Historic Preservation, the National Park Service, and the FTA) — and having more than enough time to use that feedback to identify and evaluate iwi kupuna — the City complained to Hawaii’s Congressional delegation about “unreasonable comments” from federal agencies (even going so far as to call out an individual National Park Service employee and the location of her office). AR 125190. - 17 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 28 of 86 PageID #: 6301 other words, they deferred identification and evaluation of iwi kupuna until after project approval. The Ninth Circuit has squarely rejected Defendants’ “phased” approach to surveying, identifying, and evaluating iwi kupuna. See North Idaho, 545 F.3d at 1158-59. In North Idaho, the court struck down the Federal Highway Administration’s “phase-by-phase” approach to identifying and evaluating the potential use of 4(f) resources by a four-phase highway project. North Idaho, 545 F.3d at 1158-59. The Federal Highway Administration (“FHWA”) prepared a detailed evaluation of the first construction phase of the highway project, but deferred its evaluation of the remaining three construction phases until after the ROD has been issued. Id. The Ninth Circuit held that this approach violates Section 4(f) because “an agency is required to complete the § 4(f) evaluation for the entire Project prior to issuing its ROD.” Id.9 The same rule applies here. Like the FHWA in North Idaho, Defendants have broken the Project into multiple construction “phases.” North Idaho, 545 F.3d at 1158-59; AR 059459 at 059478 (Defendants’ approach to phasing). Like the FHWA in North Idaho, Defendants conducted 9 The timing of the North Idaho litigation was such that the Ninth Circuit reached its decision on the basis of the previous version of the Section 4(f) Regulations. But the North Idaho court also evaluated the current version of the Section 4(f) Regulations, ultimately concluding that nothing in the current version would alter its holding. North Idaho, 545 F. 3d at 1158-59 n.7(current regulations “still provide that § 4(f) properties must be evaluated early while alternatives are under study, and that the § 4(f) approval should appear in the EIS or ROD”). - 18 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 29 of 86 PageID #: 6302 some § 4(f) surveys (for iwi kupuna) on the first phase of the Project. North Idaho, 545 F. 3d at 1158-59; AR 059459 at 059478-88 (scope of AIS). And like the FHWA in North Idaho, Defendants issued a ROD without completing detailed § 4(f) surveys on remaining phases of the Project. Id.; see also AR 000030 at 000085 (Programmatic Agreement).10 Accordingly, Plaintiffs are entitled to summary judgment on their fifth cause of action. North Idaho, 545 F.3d at 1158-59; Corridor H Alternatives, 166 F.3d at 372-74 (D.C. Cir. 1999); see also Benton Franklin Riverfront Trailway And Bridge Committee v. Lewis, 701 F.2d 784, 788-89 (9th Cir. 1983) (criticizing agency’s failure to identify and evaluate 4(f) resources prior to release of FEIS). b) Defendants Failed Fully To Survey, Identify, And Evaluate TCPs Prior To Approving The Project, Thereby Violating Section 4(f) TCPs are resources “eligible for inclusion in the National Register because of [] association with cultural practices or beliefs of a living community that (a) are rooted in the community’s history, and (b) are 10 It is worth noting the close parallel between Defendants’ “phasing” of 4(f) compliance so as to avoid confronting certain difficult-to-deal-with historic resources and their “segmentation” of NEPA compliance so as to avoid confronting other Project impacts and alternatives (discussed in section V.D.4, below). A leading — and one of the earliest — 4(f) cases recognized that same connection. See Named Individual Members Of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1021, 1023 (5th Cir. 1971) cert denied 406 U.S. 993 (1972) (segmentation of project for 4(f) purposes). As the Fifth Circuit put it: “The secretary’s approach to his section 4(f) responsibilities make[s] a joke of the feasible and prudent alternatives standard, and we not only decline to give such an approach our imprimatur, we specifically declare it unlaful.” Id. - 19 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 30 of 86 PageID #: 6303 important in maintaining the continuing cultural identity of the community.” Adams Dec., ¶ 3, Ex. B at 1. Such resources are protected by Section 4(f). See id. (defining TCPs); see also 23 C.F.R. §§ 774.11(e) (Section 4(f) applicable to historic sites), 774.17 (definition of historic sites includes Register-eligible resources). Defendants conducted “preliminary” research on TCPs. See AR 000030 at 000091. That research appears to have consisted of identifying a single TCP (Chinatown). Id. Defendants deferred a more thorough “study to identify and evaluate the [Project’s Area of Potential Effect] for the presence of traditional cultural properties” until after approval of the Project. AR 000247 at 000623. As explained above, this “phased” approach is not allowed under Section 4(f).11 23 C.F.R. § 774.9(b); see also North Idaho, 545 F.3d at 1159, n.7; Valley Community Preservation Commission, 373 F.3d at 1087-88; Corridor H Alternatives, 166 F.3d at 372-74; 23 C.F.R. § 774.9(a). For this reason, too, Plaintiffs are entitled to summary judgment on their fifth cause of action. 11 Under some circumstances, such an approach might be permissible under the NHPA (a procedural statute). See, e.g., 36 C.F.R. §§ 800.4(b)(2), 800.8(a)(1). But Section 4(f)’s substantive mandate to avoid the impacts to historic resources (discussed in sections III.A, above, and V.C.3, below) means that all historic resources must be identified and evaluated before agency decisions are made. See North Idaho, 545 F. 3d at 1158-59. - 20 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 31 of 86 PageID #: 6304 2. Defendants Arbitrarily And Capriciously Evaluated The Project’s Use Of Section 4(f) Resources (Count 6) Section 4(f) requires Department of Transportation agencies to evaluate the potential for transportation projects to “use” 4(f) Resources. In purported compliance with that requirement Defendants prepared a “Final Section 4(f) Evaluation,” which appears as Chapter 5 of the FEIS. See AR 000247 at 000680-753. Defendants’ evaluation was arbitrary, capricious, and in violation of Section 4(f). Accordingly, Plaintiffs are entitled to summary judgment. a) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Directly Use The Merchant Street Historic District A direct “use” occurs when land from a 4(f) Resource is incorporated into a transportation project. See 23 C.F.R. § 774.17 (definition of “use”). The Project involves the construction of a 3-story concrete guideway within Nimitz Highway along the downtown Honolulu waterfront. A portion of that route lies within the Merchant Street Historic District. AR 000030 at 000218 (description of district borders); Adams Dec., ¶ 4, Ex. C at 7 (map). Defendants nonetheless failed to recognize or disclose that the Project will directly use the district. AR 000247 at 000743-44. That failure was clearly arbitrary and capricious. - 21 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 32 of 86 PageID #: 6305 b) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Constructively Use 4(f) Resources Under Section 4(f), the term “use” is “construed broadly, not limited to the concept of a physical taking.” Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982); see also 23 C.F.R. § 774.17 (definition of “use”); Stop H-3 Ass’n v. Coleman, 533 F.2d 434 445 (9th Cir. 1976) (finding “use” where freeway would “pass near” a Native Hawaiian cultural site); Brooks v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972) (“the word ‘use’ is to be construed broadly”). In recognition of that principle, the Section 4(f) Regulations address “constructive use” of 4(f) Resources. See 23 C.F.R. §§ 774.15; 774.17. A constructive use occurs where “the transportation project does not incorporate land from a Section 4(f) property, but the project’s proximity impacts are so severe that the protected activities, features, or attributes that qualify the property for protection under Section 4(f) are substantially impaired.” 23 C.F.R. § 774.15(a). The potential for a transportation project to constructively use 4(f) Resources must be evaluated prior to project approval. 23 C.F.R. §§ 774.9(a)- (b) (timing of use determinations), 775.15(c) (constructive use). Such an evaluation must include (at least) the following three factors: (1) identification of the attributes of the 4(f) Resource subject to protection under Section 4(f); (2) analysis of the impacts of the proposed project on the 4(f) - 22 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 33 of 86 PageID #: 6306 Resource; and (3) consultation with the official(s) with jurisdiction over the 4(f) Resource. 23 C.F.R. § 774.15(d); 73 Fed. Reg. 13368, 13387 (March 12, 2008) (“FTA agree[s] that a determination of constructive use should always be based upon the factors identified”). In purported compliance with these requirements, Defendants’ FEIS contains a discussion of constructive use. See AR 000247 at 000728-747. But, for the reasons set forth below, Defendants’ constructive use evaluation was arbitrary, capricious, and contrary to law. (i) Aloha Tower Aloha Tower is an Art Deco building on the downtown Honolulu waterfront.12 It has been listed on the National Register of Historic Places since 1976. It is also located in close proximity to several other historic downtown resources, including the Dillingham Transportation Building, the Merchant Street Historic District, the Chinatown Historic District, Irwin Memorial Park, and Walker Park. See AR 000247 at 000689. Defendants admit that Aloha Tower is historically-significant in several respects, including as “an example of 1920’s Art Deco architecture in Hawaii” and as “a local landmark [viewed] from the inland area.” AR 000247 at 000745-46. These historic attributes are protected under Section 4(f). 23 C.F.R. §§ 774.11(e), 774.15(a), 774.17. 12 A map showing the locations of the downtown Honolulu historic resources is - 23 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 34 of 86 PageID #: 6307 Defendants concluded that the Project will not constructively use Aloha Tower. AR 000247 at 000745-46. That conclusion is arbitrary and capricious in two primary respects. First, Defendants’ conclusion violates the Section 4(f) Regulations. The Regulations provide that a constructive use occurs whenever “a proposed transportation facility…obstructs or eliminates the primary views of an architecturally significant historical building.” 23 C.F.R. § 774.15(e)(2). As noted above, Aloha Tower is an architecturally-significant building and is considered a “landmark” when viewed from inland. AR 000247 at 000745-46. Defendants concede that the Project will, at the very least, “obstruct” those same views of Aloha Tower: • Defendants admit that “the Downtown Station and guideway will be dominant features in views” (AR 000247 at 512); • Defendants admit that “the guideway structure will partially block a view of Aloha Tower” from the pedestrian mall on Fort Street (AR 000247 at 512); • Defendants admit that the Project will “block portions of makai views” toward Aloha Tower from at least four perspectives13 (AR 000247 at 540). attached hereto as exhibit 1. 13 Those perspectives include views down Bethel, Fort, Bishop, and Richards streets. AR 000247 at 000540. - 24 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 35 of 86 PageID #: 6308 Defendants found that these visual impacts will be “significant,” a term they define as involving “substantial changes to existing views…resulting in a greatly changed view.” AR 000247 at 000509-510. Under these circumstances, the 4(f) Regulations required a finding of constructive use. 23 C.F.R. §§ 774.15(a) (constructive use where “substantial” impact occurs), 774.15(e)(2) (constructive use where views are obstructed). Second, Defendants’ conclusion appears to be based on irrelevant information. For example, Defendants suggest there will be no constructive use of Aloha Tower because “the Project will not block views, although some will be altered.” AR 000247 at 000746. But this purported distinction between “altered” views and “blocked” views is not legally relevant; the relevant question is whether the Project would “substantially impair” the views of Aloha Tower. See 23 C.F.R. § 774.15(a). Defendants also claim that “Aloha Tower will still be able to be viewed from many vantage points without seeing the Project.” AR 000247 at 000746. This, too, is irrelevant. Again, the relevant question is whether the Project would “substantially impair” a significant attribute of Aloha Tower; the suggestion that Aloha Tower will not be “used” in some other way is beside the point. See 23 C.F.R. § 774.15(a). - 25 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 36 of 86 PageID #: 6309 (ii) Walker Park Walker Park is a small public park in downtown Honolulu offering a seating area, a fountain, a number of mature palm trees, and open views toward Honolulu harbor and Aloha Tower. AR 000247 at 000731, 000744. It is also eligible for listing on the National Register of Historic Places as “an early example of a created greenspace” in downtown Honolulu. AR 000247 at 000744. Walker Park qualifies for protection under Section 4(f) on both bases. The Project would place a 3-story elevated concrete rail line approximately 50 feet from the edge of Walker Park. AR 000247 at 000744. Defendants nonetheless concluded that the Project would not constructively use the park. AR 000247 at 000731, 000744. With respect to Walker Park’s historic attributes, Defendants simply conclude, without explanation, that the Project would not “substantially impair the park’s historic associations.” AR 000247 at 000744. And with respect to Walker Park’s parkland attributes, Defendants suggest that “the Project will not change views from within the park” and therefore would not result in a constructive use. AR 000247 at 000731. Those conclusions were arbitrary and capricious in multiple respects. First, none of the visual impact analyses in the Administrative Record actually addresses the Project’s impacts on Walker Park. See, e.g., AR 000247 at 000511-12. For this reason alone, Defendants’ findings on that subject should be rejected. Motor Vehicle Manufacturers, 463 U.S. at 43 (failure to - 26 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 37 of 86 PageID #: 6310 consider “an important aspect of the problem” is arbitrary and capricious); 23 C.F.R. § 774.15(d) (requiring evaluation of impacts). Second, to the extent that the visual impact analyses in the Administrative Record can reasonably be extrapolated to Walker Park, those analyses undermine Defendants’ conclusions. Defendants’ visual impact analyses admit that the portion of the Project adjacent to Walker Park would be “dominant in views,” would “contrast substantially” with park trees, would “change the visual character of the streetscape,” would create “light and glare,” and would be “prominent in [] views of Honolulu Harbor, partially blocking views of the sky.” AR 000247 at 000512, 000540-41.14 Third, Defendants’ constructive use analysis for Walker Park fails to address noise. AR 000247 at 000731, 000744. And the noise impact analyses elsewhere in the Administrative Record are not at all consistent with applicable FTA requirements.15 14 The analyses also note that these visual effects would be even “more noticeable” from viewpoints (like Walker Park) located close to the rail line. AR 000247 at 000512 (line 16). 15 The City prepared a technical report on noise in 2008 and an addendum to that report in 2009. FTA reviewed the 2008 report and determined that it was inadequate. AR 72929. Specifically, FTA found that the 2008 report (1) failed to disclose the noise caused by the Project and (2) did not provide any way to determine the effectiveness of mitigation. AR 072897 at 072929. The 2009 addendum purported to address the first issue by claiming that the Project’s “reference Sound Exposure Level” (or “SEL”) would be 82 decibels of noise within 50 feet of the rail line. AR 072897 at 072898. The rail line would be located 50 feet from Walker Park. AR 000247 at 000744. But, for reasons not explained in their noise analyses, Defendants estimate that the Project will only result in 65 decibels of additional noise in Walker Park. AR 072897 at 072926. This is not an insignificant difference. Ten decibels - 27 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 38 of 86 PageID #: 6311 Fourth, the Administrative Record does not appear to contain any evidence supporting Defendants’ conclusory assertion that the Project will not “impair the park’s historic associations.” For example, there is no evidence that Defendants ever evaluated the original (historic) plans for the park or determined whether the Project might interfere with the park attributes identified in those plans. (iii) Merchant Street Historic District As discussed in section V.C.2.b.i, above, Defendants arbitrarily and capriciously concluded that the Project would not constitute a direct use of the Merchant Street Historic District. In the alternative, Defendants arbitrarily and capriciously concluded that the Project would not constitute a constructive use of the Merchant Street Historic District. The Merchant Street Historic District is a collection of nineteenth century buildings at the core of historic downtown Honolulu. AR 000030 at 000217. It has been listed on the National Register of Historic Places since 1973. Adams Dec., ¶ 4, Ex. C. The Keeper of the National Register has affirmed that the District represents “an incalculable asset as an historic record of Honolulu’s past” and has recognized the need to preserve the District’s represents a 100% change in noise level. In other words, Defendants may have under-estimated the Project’s noise impacts on Walker Park by more than 150%. - 28 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 39 of 86 PageID #: 6312 “small scale human environment.” Id. at 3. This feature is therefore subject to protection under Section 4(f). The Project would place a 3-story elevated heavy rail line along the edge of the Merchant Street Historic District. AR 000030 at 000214-18; AR 000247 at 000743-44; see also § V.C.2.b.i, above. Defendants nonetheless concluded that the Project would not constructively use the Merchant Street Historic District. AR 000247 at 000743-44. That conclusion is arbitrary and capricious in two fundamental respects. First, Defendants’ constructive use evaluation focuses exclusively on a single building within the Merchant Street Historic District. AR 000247 at 000743-744. It does not evaluate whether the Project might substantially impair any of the protected attributes of the District as a whole. Id. Such an approach is inherently arbitrary and capricious. Motor Vehicle Manufacturers Association, 463 U.S. at 43 (failure to consider “an important part of the problem” is arbitrary and capricious). It is also directly contrary to applicable FTA guidance. See AR 021938 at 021955 (“the district as a whole must be carefully evaluated”). Second, the Administrative Record demonstrates that the Project will, in fact, substantially impair one of the protected features of the Merchant Street Historic District. As noted above, part of the District’s historic significance is tied to the neighborhood’s “small scale human environment.” Into that - 29 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 40 of 86 PageID #: 6313 environment, the Project will introduce a massive, modern, 3-story concrete viaduct — the very antithesis of a “small scale human” feature. Indeed, Defendants essentially concede as much. They admit that the Project will “reduce the open character of the streetscape, create shade and shadows, and block portions of makai views” on multiple streets within the Merchant Street Historic District. AR 000247 at 000540. They also concede these effects on the area will be “significant,” a term which they define as involving “substantial” changes to the environment. AR 000247 at 000509-510. For this reason, too, it was arbitrary and capricious for Defendants to conclude that the Project will not constructively use Merchant Street Historic District. See AR 000030 at 000217 (important features of historic district include “small scale human environment”); 23 C.F.R. § 774.15(a) (“substantial” impact on historic feature constitutes constructive use). (iv) Irwin Park Irwin Park is a 2-acre park located next to Aloha Tower, across the street from Walker Park and the Dillingham Transportation Building, and immediately adjacent to the Project. AR 000247 at 000689, 000723 (maps); 000247 at 000731, 000746-47 (description). It is an historic resource eligible for listing in the National Register as (among other things) “an example of the work of a leading local landscape architect.” AR 000247 at 000746-77. It is - 30 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 41 of 86 PageID #: 6314 also a public park. AR 000247 at 000690. Both attributes are subject to protection under Section 4(f). See 23 C.F.R. § 774.11. Defendants concluded that the Project would not create adverse noise impacts, would not interfere with the park’s historic attributes, and therefore would not constructively use Irwin Park. AR 000247 at 000746-77. Those conclusions are arbitrary and capricious. Defendants claim that the Project would “have no adverse noise … impacts at the park.” AR 000247 at 000747. But they never studied potential noise impacts on Irwin Park; instead, they evaluated potential noise impacts on the Aloha Tower Marketplace, a busy retail area located hundreds of feet further away from the Project. AR 033642 at 033695; AR 072897 at 072919. Moreover, Defendants’ noise analyses are not at all consistent with applicable FTA requirements.16 Defendants also claim that the Project would not interfere with the historic attributes of Irwin Park. Those attributes include “the work of a 16 The City prepared a technical report on noise in 2008 and an addendum to that report in 2009. FTA reviewed the 2008 report and determined that it was inadequate. AR 072929. Specifically, FTA found that the 2008 report (1) failed to disclose the noise caused by the Project and (2) did not provide any way to determine the effectiveness of mitigation. AR 072929. The 2009 addendum purported to address the first issue by claiming that the Project’s “reference Sound Exposure Level” (or “SEL”) would be 82 decibels of noise 50 feet from the guideway, as per FTA requirements. AR 072898. The Project would be located immediately adjacent to Irwin Park. AR 000247 at 000723. Defendants admit that Project noise of 70 decibels or above (12 decibels below the Project’s reference SEL) could cause severe noise impacts. AR at 033642 at 33695; AR 072897 at 072919. Therefore, it was arbitrary and capricious for Defendants to conclude that the Project will have “no adverse noise…impacts.” AR 000247 at 000746 (emphasis added). - 31 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 42 of 86 PageID #: 6315 leading local landscape artist.” AR 000746. But they do not provide any specific analysis of these protected landscape features, a failure which is arbitrary and capricious in and of itself. See AR 000247 at 000746-47; 23 C.F.R. § 774.15(d) (required contents of constructive use analysis); Motor Vehicle Manufacturers Association, 463 U.S. at 43 (failure to consider “an important part of the problem” is arbitrary and capricious). Indeed, to the extent Defendants address Irwin Park’s landscaping at all, it is to admit that (1) the Project would “contrast substantially” with trees in the park and (2) the overall effect of the Project on the Irwin Park area as a “substantial change” to sensitive resources. AR 000247 at 000509 (“substantial change”), 000511 (Project would “contrast substantially with Irwin Park street trees”). (v) Mother Waldron Neighborhood Park Mother Waldron Neighborhood Park is a public park in downtown Honolulu. It is also an historic resource eligible for listing in the National Register for its historic architecture and landscape design. AR 000247 at 000747. The park qualifies for protection under Section 4(f) as parkland and as an historic site. See 23 C.F.R. § 774.11. The Project would place a 3-story elevated heavy rail line approximately 10 feet from the edge of Mother Waldron Neighborhood Park. AR 000247 at 000747. Defendants nonetheless concluded that the Project would not - 32 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 43 of 86 PageID #: 6316 constructively use the park. AR 000247 at 000746-47. That conclusion was arbitrary and capricious. First, the Project will “contrast significantly with the scale and character of Mother Waldron Neighborhood Park” and will block views of the park from nearby residences. AR 000247 at AR 000512. While the City tried to downplay these effects as “a new visual element,” FTA accurately characterized them as “devastating.” AR 000247 at 000747 (City characterization); AR 072988 at 072998 (FTA admits Project will have “devastating effects on makai views of…the park”). Second, Defendants’ Section 4(f) evaluation fails to address the Project’s noise impacts on Mother Waldron Neighborhood Park. AR 000247 at 000732, 000747. That failure is arbitrary and capricious in and of itself. Motor Vehicle Manufacturers Association, 463 U.S. at 43 (failure to consider “an important part of the problem” is arbitrary and capricious). Moreover, evidence found elsewhere in the Administrative Record indicates that the Project’s noise impacts may, in fact, be severe. The Project will cause 82 decibels of noise at points within 50 feet of the rail line. AR 072898. The rail line will be just 10 or so feet from the park (well within the 50-foot envelope). AR 000247 at 000747 (10 feet from park). And Defendants’ technical report admits that noise above 67 decibels would cause a severe impact. AR 072897 at 072920. - 33 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 44 of 86 PageID #: 6317 c) Defendants’ Evaluation Of Makalapa Navy Housing Was Arbitrary And Capricious In Multiple Respects Makalapa is a residential area containing a large number of historic homes. AR 000247 at 000739-740. The area is eligible for listing in the National Register as (among other things), an example of the work of a master architect and as an example of the Navy’s historic “Garden City” planning program. Id. The problems with Defendants’ evaluation of Makalapa are so fundamental that they defy easy characterization as “constructive use issues” or “direct use issues.” Therefore, we address them in this separate subsection. First, it is not at all clear which property or properties Defendants evaluated. Makalapa is owned by the United States Navy, and the Navy manages it as a single historic resource within a single set of boundaries. See AR 060254-55. The FTA agreed with the Navy’s approach. AR 060254-55. But the City (perhaps seeking to avoid the mandates of Section 4(f)) claims that the area actually consists of two, smaller historic districts dubbed “Potential Makalapa Housing Historic District” and “Potential Little Makalapa Navy Housing Historic District.” Id. Maps created by the City and attached to the ROD do, in fact, show a “Potential Makalapa Housing Historic District” and a “Potential Little Makalapa Historic District.” AR 000247 at 000152. But the text of Defendants’ Final Section 4(f) Evaluation only discusses a “Potential Makalapa Navy Housing Historic District”; it makes no mention of - 34 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 45 of 86 PageID #: 6318 any “Little Makalapa” district. AR 000247 at 000739-40; see also 000247 at 000692 (listing properties evaluated for 4(f) use). In short, it appears that Defendants (1) failed to evaluate “Little Makalapa” under Section 4(f), (2) used inconsistent definitions of the boundaries of the larger Makalapa area, or (3) both. Second, if Defendants did, in fact, carve up Makalapa into smaller historic districts, they have not provided sufficient justification doing so. In particular, they have not explained how and why specific boundary lines between the two areas were drawn. AR 000247 at 000739-40. That failure is arbitrary and capricious, particularly in light of evidence in the Administrative Record suggesting that the Navy (the federal agency responsible for Makalapa) manages the area as a single resource (an approach with which the FTA at one point concurred). AR 0060254 at 0060254-55. As the Historic Hawaii Foundation accurately noted, the City’s approach to Makalapa “appear[s] to be a gerrymander….which suggests a motive of convenience rather than a professional determination.” AR 059005 at 059007. Third, Defendants’ Section 4(f) evaluation does not account for some of Makalapa’s historic attributes. Makalapa’s setting is one of the aspects of its eligibility for the National Register; therefore, setting is a feature protected under Section 4(f). AR 039709 (importance of setting); 23 C.F.R. §§ 774.11(e), 774.15(d) (protected features). The Administrative Record contains - 35 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 46 of 86 PageID #: 6319 a technical report which found that the Project would “adversely affect” Makalapa’s “integrity of setting.” AR 039555 at 039709. But Defendants’ Section 4(f) Evaluation does not address that issue. AR 000247 at 000739- 740. Fourth, Defendants’ Section 4(f) Evaluation does not account for the Project’s Pearl Harbor rail station and “traction power substation.” These are significant omissions: • The rail station would be a concrete structure 240 feet long, more than 100 feet wide, and approximately 55 feet high.17 AR 000247 at 000354; AR 0040003. Maps in the Administrative Record depict the station within median of a roadway. See, e.g., AR 000247 at 000354. But there is no mention of how the station will be built without using the historic properties on both sides of the Highway. Id.18 • The traction power substation would be a 3,200 square foot steel building enclosed within a steel fence. AR 000247 at 000360. Maps in the Administrative Record suggest that the substation would be located immediately adjacent to the Pearl Harbor rail station (and either within or on the border of the Makalapa historic district). See 17 Defendants’ EIS never actually discloses the height of the Project’s rail stations. But by combining the “conceptual” drawing presented in section 2 of the EIS (which show station rooflines extending above the top of each train) with the “typical section” drawings elsewhere in the Administrative Record (which show the top of each train approximately 50 feet above street level), it is possible to estimate that the total height of the Pearl Harbor rail station will be approximately 55 feet above street level. See AR 000247 at 000347-49 (“conceptual” drawing); AR 0040003 (“typical section”). 18 It also appears that buildings and infrastructure allowing passengers to access the station may be located within the Makalapa historic district(s). AR 000247 at 000354. - 36 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 47 of 86 PageID #: 6320 AR 000030 at 000153; AR 033677. None of these Project elements is addressed in Defendants’ Section 4(f) evaluation of Makalapa. AR 000247 at 000739-740. d) Defendants’ Arbitrary And Capricious Use Determinations Were Not “Harmless Error” It is important to note that Defendants’ failure properly to evaluate the Project’s use of 4(f) Resources was not a harmless mistake. As will be discussed in the section V.C.3.a, below, there are feasible and prudent alternatives to using the historic and parkland resources of downtown Honolulu. Likewise, there are feasible and prudent alternatives to routing the Project through Makalapa. See AR 060254 at 060255 (“the Center Drive Alternative [] is a bit of a problem, but is prudent and feasible”). Had Defendants properly evaluated 4(f) Resources, they would have been required to implement such alternatives. See 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. 3. Defendants Approved The Project In Violation Of Section 4(f) (Count 7) Section 4(f) prohibits the approval of a transportation project that uses 4(f) Resources unless (1) there is no feasible and prudent alternative and (2) the project includes all possible planning to minimize harm. 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. If there is no prudent and feasible alternative that would avoid the use of 4(f) Resources, only the alternative that (1) causes the “least overall harm” to historic resources and (2) includes all possible planning to minimize harm can be approved. 23 C.F.R. § 774.3(c). - 37 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 48 of 86 PageID #: 6321 There is no dispute that the Project will use 4(f) Resources. AR 000247 at 000680-752 (4(f) evaluation). Therefore, Defendants were required to comply with the requirements described above. They failed to do so. Accordingly, Plaintiffs are entitled to summary judgment. a) Defendants Failed To Demonstrate The Absence Of Prudent And Feasible Alternatives To The Project’s Use Of 4(f) Resources Where, as here, a transportation project would use 4(f) Resources, Department of Transportation agencies must determine whether there are feasible and prudent alternatives capable of avoiding such use. 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. The concepts of feasibility and prudence are defined by the 4(f) Regulations. See 23 C.F.R. § 774.17. An alternative is feasible if it is can be built “as a matter of sound engineering judgment.” 23 C.F.R. § 774.17; see also AR 021938 at 021946 (4(f) Policy Paper guidance). In other words, “[a]n alternative is feasible if it is technically possible to design and build that alternative.” AR 21938 at 21946. The 4(f) Regulations define the concept of prudence by identifying six situations in which an alternative may be considered imprudent. 23 C.F.R. § 774.17. Those situations include the following: (1) the alternative “compromises the project to a degree that it is unreasonable to proceed with the project”; (2) the alternative creates “unacceptable safety or operational - 38 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 49 of 86 PageID #: 6322 problems”; (3) the alternative causes severe environmental or social impacts; (4) the alternative results in additional costs “of an extraordinary magnitude”; (5) the alternative causes “other unique problems”; and (6) the alternative involves several of the five identified factors which, “while individually minor, cumulatively cause unique problems or impacts of extraordinary magnitude.” Id. The 4(f) Regulations do not identify any other permissible basis for determining that an alternative is imprudent. See 23 C.F.R. § 774.17; AR 21938 at 21946 (guidance in “4(f) Policy Paper”). The concepts of feasibility and (in particular) prudence require agencies to balance a variety of engineering, historic preservation, environmental, and economic factors. See 23 C.F.R. § 774.17 (identifying factors to be balanced). The 4(f) Regulations require that this balancing process be conducted with “a thumb on the scale on the side of avoiding [] Section 4(f) Property.” 73 Fed. Reg. 13368, 13391 (March 12, 2008) (explaining 4(f) Regulations). In other words, an alternative to the use of a 4(f) Resource should only be rejected as infeasible or imprudent if it causes “severe problems of a magnitude that substantially outweighs the importance of protecting the [4(f) Resource].” 23 C.F.R. § 774.17. A Department of Transportation agency’s analysis of feasibility and prudence must be documented in a written Section 4(f) Evaluation. 23 C.F.R. § 774.7(a). If the agency concludes that there is no feasible and prudent - 39 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 50 of 86 PageID #: 6323 alternative, that conclusion must also be explained and supported in the 4(f) Evaluation. Id. Indeed, the 4(f) Regulations explicitly provide that “a Section 4(f) Evaluation shall include sufficient supporting documentation to demonstrate why there is no feasible and prudent avoidance alternative.” Id. (emphasis added). Defendants failed to satisfy these requirements. Instead, they improperly rejected a number of alternatives to the Project’s use of 4(f) Resources, including (1) Honolulutraffic.com’s managed lanes alternative (the “MLA”), (2) a downtown tunnel, and (3) various alternative transit technologies and alignments. Each of those alternatives is addressed below. But before zooming in on the details of the individual alternatives, it is important to consider a few aspects of the big picture: • This is considered the largest public works project in the State of Hawaii. • Even Defendants’ cramped, arbitrary and capricious 4(f) Evaluation admits that the Project will use 4(f) Resources in the historic core of downtown Honolulu. See AR 000247 at 000718-27 (use of Chinatown Historic District and Dillingham Transportation Building). • Defendants also admit that those 4(f) Resources are extremely valuable. See, e.g., AR 072807 at 072811 (Dillingham Transportation Building is “a very significant 4(f) property”), AR 039555 at 039837 (Chinatown “is one of the few areas of Honolulu which has maintained a sense of identity over the years”). - 40 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 51 of 86 PageID #: 6324 • To be feasible and prudent, a 4(f) alternative need only be “technically possible to design” and not cause “severe problems of a magnitude that substantially outweighs the importance of protecting” 4(f) Resources. And yet Defendants claim that there is not a single feasible and prudent alternative to the use of 4(f) Resources in Downtown Honolulu. AR 000247 at 000718-27. How could that possibly be? As the following examples illustrate, Defendants failed properly to apply the 4(f) feasibility and prudence criteria (when they applied the criteria at all) and impermissibly relied on the results of the City’s AA process. Both failures violate Section 4(f). And both require that Plaintiffs be awarded summary judgment. (i) Managed Lanes Alternative Downtown Honolulu contains a very significant concentration of 4(f) Resources. See AR 000247 at 000689. Although there is a dispute between the parties as to the extent of the Project’s use of downtown 4(f) Resources, there is universal agreement that the Project will use some of them. See AR 000247 at 000680-752 (4(f) Evaluation). Specifically, Defendants admit that the Project would use the Chinatown Historic District and the Dillingham Transportation Building. AR 000247 at 000718-27. The use of 4(f) Resources in downtown Honolulu could be avoided by implementing Honolulutraffic.com’s Managed Lanes Alternative (“MLA”). The MLA would involve construction of a 2- or 3-lane roadway for use by - 41 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 52 of 86 PageID #: 6325 express buses, vanpools, and carpools.19 The terminus of the MLA would be located just west of downtown, thereby avoiding impacts to downtown 4(f) Resources.20 AR 071958. Indeed, the MLA was designed to serve that avoidance purpose. Id. The City considered — and then rejected — a “straw man” version of the MLA during its early planning process. See AR 000247 at 000321 (decision to reject MLA reached during Alternatives Analysis); AR 000247 at 002022-31 (version of MLA considered by City was “designed to fail”). That decision was arbitrary, capricious, and in violation of Section 4(f).21 First, and most importantly, the City rejected the MLA without ever determining that it was “infeasible” or “imprudent.” The FEIS admits that the MLA was rejected during the City’s AA process. AR 000247 at 000321. The documents prepared in support of that process do not find or conclude that the MLA is “infeasible” or “imprudent” within the meaning of Section 4(f). See 19 Thus, the MLA is not an alternative to public transit. Rather, it is a piece of infrastructure to be used by public transit (buses, etc.). 20 The 4(f) Resources avoided by the MLA include the following: Chinatown Historic District, Merchant Street Historic District, Walker Park, Irwin Park, Aloha Tower, Dillingham Transportation Building, and Mother Waldron Neighborhood Park. AR 000247 at 000689 (map). Defendants admit that the Project would use the Chinatown Historic District and the Dillingham Tranportation Building. AR 000247 at 000718-27. Defendants have arbitrarily and capriciously denied that the Project will use Merchant Street Historic District, Walker Park, Irwin Park, Aloha Tower, and Mother Waldron Neighborhood Park. See § V.C.2, above. 21 Defendants’ (and, in particular, the City’s) treatment of the MLA also violated NEPA. See § V.D.2, below. - 42 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 53 of 86 PageID #: 6326 AR 009434-009555 (AA Report); AR 009556-009683 (AA Screening Memo); AR 049484-049731 (Definition of alternatives). In fact, none of the early planning process documents even purported to apply the Section 4(f) feasibility and prudence criteria to the MLA. Id.; 23 C.F.R. § 774.17 (listing criteria). Second, Defendants’ reliance on the City’s early planning process was arbitrary and capricious in and of itself. SAFETEA-LU allows local agencies to prepare certain NEPA analyses, but only subject to close oversight by federal agencies. See 23 U.S.C. § 139(c)(3). The alternatives analysis requirements of NEPA are not the same as those of Section 4(f). Compare, e.g., 40 C.F.R. § 1502.14 (NEPA requires consideration of reasonable alternatives) with 23 C.F.R. §§ 774.3, 774.17 (Section 4(f) requires adoption of feasible and prudent alternatives capable of avoiding 4(f) Resources); see also AR 021938 at 021946 (“It is important to point out that the standard for evaluating alternatives under NEPA and the standard for evaluating alternatives under Section 4(f) are different”). And FTA was not involved in the City’s early planning process. See, e.g., AR 009434-554 (AA Report makes no mention of FTA involvement). Therefore, Defendants were not entitled to rely on the results of the City’s early planning process to satisfy Section 4(f). See 23 U.S.C. § 139(c)(3).22 22 It is also worth noting that the 4(f) Regulations, promulgated three years - 43 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 54 of 86 PageID #: 6327 Third, the MLA is not addressed in Defendants’ Section 4(f) Evaluation. See 23 C.F.R. § 774.7(a) (4(f) evaluation required to demonstrate “why there is no feasible and prudent avoidance alternative”). Fourth, although not addressed in Defendants’ Final Section 4(f) Evaluation, other evidence in the Administrative Record demonstrates that the MLA is, in fact, prudent and feasible. The MLA is feasible to engineer and build — in fact, there exists a similar facility in Tampa. See 23 C.F.R. § 774.17 (definition of feasibility); AR 071958 (MLA similar to Tampa facility). The MLA is also prudent: it promotes transit (in the form of a network of bus lanes) and is therefore consistent with the fundamental purpose of the Project; it will not result in safety problems; it will not cause severe environmental impacts; it is less costly than the Project; and there is no evidence that it involves any other “unusual factors.” Id.; see also 23 C.F.R. § 774.17 (definition of prudence). Fifth, there is no evidence that Defendants ever weighed the prudence and feasibility of the MLA together with the importance of preserving 4(f) Resources. The 4(f) Regulations explicitly require such an analysis. See 23 C.F.R. § 774.17; see also 73 Fed. Reg. 13368, 13391 (March 12, 2008) (4(f) after SAFETEA-LU, require Department of Transportation agencies (rather than their local partners) to make determinations about feasibility and prudence. See 23 C.F.R. §§ 774.3, 774.7, 774.15; see also 23 C.F.R. § 774.17 (definition of “Administration” does not include local agencies acting pursuant to 23 U.S.C. § 139). - 44 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 55 of 86 PageID #: 6328 Regulations require “a thumb on the scale on the side of avoiding [] Section 4(f) Property”). Finally, it is worth noting that Plaintiff Honolulutraffic.com submitted to Defendants a comment letter explaining, in detail, why its MLA is both feasible and prudent. AR 071958. Defendants never sent Honolulutraffic.com a response. That silence speaks volumes. (ii) Downtown Tunnel The Project’s use of 4(f) Resources could also be avoided by routing the Project through a tunnel beneath Honolulu’s historic downtown core. See, e.g., AR 000247 at 000719 (tunnel would completely avoid impacts on Chinatown Historic District), 000721-22 (avoidance of impacts on Dillingham Transportation Building); 000720 (map showing that tunnel would also avoid impacts to Merchant Street Historic District, Walker Park, Irwin Park, Aloha Tower, and Mother Waldron Community Park). Defendants admit that there are at least two different locations where such a tunnel could be built: King Street and Beretania Street. See AR 000247 at 000719. The King Street alignment would require a longer tunnel than the Beretania Street alignment. AR 000247 at 000719. Defendants rejected the tunnel alternatives as too expensive. AR 000247 at 000719. Specifically, Defendants’ 4(f) Evaluation asserts, without citation or detailed explanation, that that a tunnel “would increase the cost of - 45 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 56 of 86 PageID #: 6329 the Project by more than $650 million (2006 dollars), which is beyond the funding provided in the financial plan,” and, for that reason, “it would result in additional construction cost of an extraordinary magnitude.” Id. That finding was arbitrary and capricious in several respects. First, Defendants’ conclusion appears to be based on a 2006 cost estimate for the King Street tunnel. See AR 009434 at 009540. They never evaluated the cost of the shorter (and presumably less expensive) Beretania Street tunnel. Id. Nor did they update their cost estimates after 2006 (more than four years prior to the approval of the Project). AR 000030 (ROD issued in January, 2011). Second, Defendants improperly relied on the fact that the tunnel alternative does not appear in the Project’s financial plan. See AR 719 (tunnel is “beyond the funding provided in the financial plan”). But the Project’s financial plan was, by definition, prepared for the Project. Of course it did not include line items for alternatives. That fact is not relevant to the question of whether a tunnel would be too expensive. Third, Defendants improperly relied on the raw cost of the (King Street) tunnel. AR 000247 at 000719, 009434 at 0009540. The 4(f) Regulations provide that an alternative may only be rejected as “too expensive” if it requires an additional cost of “extraordinary magnitude.” 23 C.F.R. § 774.17. To measure “extraordinary magnitude,” it is necessary to consider total project - 46 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 57 of 86 PageID #: 6330 cost.23 The document from which Defendants pulled their $650 million estimate for the (King Street) tunnel also forecasts a total Project cost of approximately $4.2 billion. AR 009434 at 009540. In other words, the (King Street) tunnel would increase the cost of the Project by 15%. Id. Defendants did not consider whether 15% represents a cost increase of “extraordinary magnitude.” See 23 C.F.R. § 774.17. Fourth, regardless of the cost of the tunnel (whether expressed in raw terms or as a percentage increase), Defendants were obligated to weigh that cost against the value of preserving downtown’s 4(f) Resources. See 23 C.F.R. § 774.17. They failed to do so. AR 000247 at 000719. That failure is particularly problematic in this case because the downtown tunnel alternatives provide a way to avoid the use of (and other impacts to) an extraordinary collection (both in number and in quality) of historic resources. See, e.g., AR 000689 (map of downtown resources); 072807 at 072811 (“very significant 4(f) property”). (iii) Alternative Transit Technologies The Administrative Record also contains evidence that alternative transit technologies such as light rail or Bus Rapid Transit could avoid some or all of the Project’s use of 4(f) Resources. 23 Otherwise, there could be no prudent alternatives to expensive projects. - 47 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 58 of 86 PageID #: 6331 For example, light rail could be placed at grade for much of the Project’s route, thereby preserving views of historic resources, maintaining the aesthetics of historic districts, and significantly reducing the impact of overhead rail stations on historic areas. See, e.g., AR 000247 at 000968 (EPA questions exclusion of light rail from EIS); AR 072134 at 072138 (Honolulu City Councilmen request consideration of light rail). Alternatively, a Bus Rapid Transit program would reduce or eliminate the need for new construction in historic areas and would be compatible with infrastructure such as the MLA. Indeed, just months before its AA process began, the City deemed Bus Rapid Transit an effective way to promote public transit in the very same corridor within which the Project is now proposed. See, e.g., AR 047927 at 047953-80 (summary of Bus Rapid Transit EIS). Unfortunately, the City rejected these options (and others)24 during its early planning process, before they could properly be evaluated under Section 4(f). That decision was arbitrary, capricious, and in violation of Section 4(f) for many of the same reasons explained above: • The City never formally found the alternative technologies infeasible or imprudent. See AR 009434-009555 (AA Report); AR 009556- 009683 (AA Screening Memo); AR 049484-049731 (Definition of 24 Transportation technologies eliminated from consideration during the early planning process included commuter rail, ferries, and (expansion of) the existing bus system. See AR 000247 at 000321. Other technology options improperly rejected (including by the 2008 Panel of Experts) include maglev, light rail, and monorail. - 48 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 59 of 86 PageID #: 6332 alternatives). • In any event, the City did not have authority to make Section 4(f) findings regarding feasibility, prudence, or the existence of feasible and prudent alternatives without FTA’s participation. 23 U.S.C. § 139. • Defendants failed to address the alternative technologies in their Final Section 4(f) Evaluation. AR 000247 at 000680-752. • Defendants never weighed the feasibility and prudence of the alternative technologies together with the importance of preserving 4(f) Resources, as required by the 4(f) Regulations. 23 C.F.R. § 774.17. For each of these reasons, the rejection of alternative transit technologies under Section 4(f) was arbitrary and capricious. b) Defendants Failed To Include All Possible Planning To Minimize Harm Section 4(f) prohibits the approval of any transportation project that uses 4(f) Resources unless the project includes all possible planning to minimize harm. 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. This requirement applies whether or not there is a feasible and prudent alternative to the project. 23 C.F.R. § 774.3(c). Therefore, it provides an independent ground for invalidating agency action. Id. The “all possible planning” requirement mandates that reasonable measures to minimize harm and/or mitigate impacts to 4(f) Resources be “included in the project.” 23 C.F.R. § 774.17. With respect to impacts on public parks, such measures may include replacement of land or facilities or - 49 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 60 of 86 PageID #: 6333 monetary compensation to enhance park property. 23 C.F.R. § 774.17. With respect to historic sites, measures to minimize harm “normally serve to preserve the historic activities, features, or attributes of the site.” Id. The Project would use 4(f) Resources. Therefore, Defendants were obligated to “include all possible planning to minimize harm.” 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. They failed to do so. For example: • The Project involves construction of a 3-story concrete rail line through the Chinatown Historic District. In doing so, it would directly use a corridor of land within the District. Defendants failed to evaluate this aspect of the Project’s use of Chinatown and, as a consequence, did not identify any reasonable measures to minimize its harm.25 • Chinatown’s connection to the Harbor is a component of its historic significance. AR 000247 at 000718; AR 039555 at 039837-39. In directly using the waterfront portion of the Chinatown Historic District, the Project would “partially block” and “substantially change” views toward Honolulu Harbor. AR 000247 at 000512 (partially block”), 000540 (“substantially change”); see also AR 039555 at 039837-39 (describing adverse effects). But the Project does not include any measures to mitigate that impact. • The Project would use Makalapa’s historic district (or districts). See § V.C.2.c, above. But it includes no measures to avoid or mitigate such use. 25 Instead, Defendants suggest that the only direct use of the Chinatown Historic District would occur at the Chinatown rail station. AR 718-21. That is patently false, as demonstrated by the maps in Defendants’ own ROD. AR 000162 (showing rail line crossing through historic district). - 50 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 61 of 86 PageID #: 6334 • The Project would constructively use Aloha Tower. See § V.C.2.b.i, above. But it includes no measures to avoid or mitigate such use. For these reasons, too, Plaintiffs are entitled to summary judgment on their seventh cause of action. D. Defendants Violated NEPA Defendants also violated NEPA in numerous ways. Their statement of purpose and need for the Project was impermissibly narrow. See § V.D.1, below. They failed to identify and evaluate reasonable alternatives to the Project. See § V.D.2, below. They did not evaluate the Project’s reasonably foreseeable environmental consequences. See § V.D.3, below. And they improperly segmented the Project, thereby preventing a meaningful evaluation of its environmental consequences and alternatives. See § V.D.4, below. 1. Defendants Defined The Purpose And Need For The Project So Narrowly As To Preclude Consideration Of Reasonable Alternatives (Count 1) An EIS must “briefly specify the underlying purpose and need to which the agency is responding.” 40 C.F.R. § 1502.13. While agencies enjoy some discretion to define the purposes of their proposed actions, they cannot define their objectives in unreasonably narrow terms. National Parks & Conservation Association v. United States Department Of The Interior, 606 F.3d 1058, 1070 (9th Cir. 2010) cert denied 130 S. Ct. 1783 (2011); see also Davis v. Mineta, 302 F.3d 1104, 1118-1120 (10th Cir. 2002) (invalidating purpose and need drawn so narrowly as to mandate construction of a highway - 51 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 62 of 86 PageID #: 6335 bridge); Simmons v. United States Army Corps of Engineers, 120 F.3d 664 (7th Cir. 1997) (invalidating narrowly-drawn statement of purpose which excluded reasonable alternatives from consideration). As the Ninth Circuit observed, “[a]n agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency’s power would accomplish the goals of the agency’s action.” National Parks & Conservation Association, 606 F.3d at 1070 (9th Cir. 2010). Otherwise, the results of an EIS “would become a foreordained formality.” Id. Unfortunately, that is precisely what Defendants have done in this case — they have defined the purpose of the Project in terms so specific that only the Project can satisfy them, thereby rendering the EIS a mere “formality.” Defendants’ statement of purpose is hardly the sort of brief statement of underlying objectives called for by NEPA.26 See 40 C.F.R. § 1502.13. Rather, it is a long list of requirements and caveats, seemingly drafted with an eye toward justifying the rejection of any option other than the construction of Defendants’ preferred Project. See AR 000247 at 000312. For example, the very first paragraph of Defendants’ statement of purpose stipulates no fewer 26 A reasonable statement might be something along the lines of “enhancing transportation and public transit between Honolulu and Kapolei” or “reducing traffic congestion in the Honolulu - Kapolei corridor” — statements of objectives which are broad enough to encompass a range of reasonable alternatives. 40 C.F.R. §§ 1502.13, 1502.14. - 52 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 63 of 86 PageID #: 6336 than eight highly-specific requirements: (1) providing high-capacity rapid transit, (2) providing transit that is faster than existing buses, (3) providing transit that is more reliable than existing buses because it does not operate in mixed traffic, (4) providing an alternative to private automobiles, (5) serving a specific transportation corridor, (6) serving specific development areas within that transportation corridor, and (7) increasing links between different forms of transit within that corridor, and (8) serving specific areas and demographics. Id. By defining the purpose of Project in such a narrow way, Defendants purported to eliminate from consideration anything that was not an elevated, heavy rail system serving a very specific area of the southern portion of Oahu. Indeed, the EIS claims that just three alternatives satisfy the Project’s various objectives. AR 000247 at 000333-337. And those three alternatives use identical technology (heavy rail), identical designs (elevated fixed guideways), and virtually-identical routes (routes identical for approximately 16 of 20 miles). AR 000247 at 000333-37. The Ninth Circuit has squarely rejected this means of “gaming” the NEPA process. See National Parks & Conservation Association v. United States Department Of The Interior, 606 F.3d at 1070-72 (invalidating EIS where statement of purpose and need was so narrow that six of seven alternatives would have resulted in the development of a landfill). We respectfully submit that this Court should do the same. - 53 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 64 of 86 PageID #: 6337 2. Defendants Failed To Consider Reasonable Alternatives To The Project (Count 2) An EIS must identify, describe, and evaluate alternatives to a proposed action. 42 U.S.C. § 4332(2)(C)(iii); 40 C.F.R. § 1502.14. A rigorous and objective evaluation of all reasonable alternatives analysis is “the heart” of an EIS. 40 C.F.R. § 1502.14.27 Failure to address a reasonable alternative renders an EIS inadequate. See, e.g., Southeast Alaska Conservation Council v. Federal Highway Administration, 649 F.3d 1050, 1056-57 (9th Cir. 2011); Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1038 (9th Cir. 2008); ‘Ilio’ulaokaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 1095 (9th Cir. 2006); Natural Resources Defense Council v. United States Forest Service, 421 F.3d 797, 813 (9th Cir. 2005). The availability of reasonable alternatives to a proposed action depends, to a certain degree, on the breadth of the proposed action itself. See, e.g., Friends of Yosemite Valley, 520 F.3d at 1038 (range of reasonable alternatives is “dictated by the nature and scope of the proposed action”); 27 Indeed, the analysis of alternatives is central to the very idea on which NEPA is based. As the Ninth Circuit has recognized on multiple occasions, “The goal of the statute is to ensure that federal agencies infuse in project planning a thorough consideration of environmental values. The consideration of alternatives furthers that goal by guaranteeing that agency decisionmakers have before them and take into proper account all possible approaches to a particular project…which would alter the environmental impact and the cost- benefit balance…Informed and meaningful consideration of alternatives - including the no action alternative - is … an integral part of the statutory scheme.” Alaska Wilderness Recreation and Tourism Association v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995) quoting Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988) cert denied 489 U.S. 1066 (1989). - 54 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 65 of 86 PageID #: 6338 ‘Ilio’ulaokaokalani Coalition, 464 F.3d at 1097-98 (recognizing connection between breadth of action and breadth of alternatives). In this case, the fundamental purpose for government action was a broad one — to improve transportation and transit (or, in agency-speak, “mobility”) in the corridor stretching from Honolulu to Kapolei. AR 000247 at 000312-14.28 Therefore, the range of available alternatives was also quite broad. At minimum, the range of alternatives available to Defendants included three categories of options: different transit technologies (bus, heavy rail, light rail, etc.); different transit routes (linear alignments, station locations, etc.); and different grade arrangements (elevated, tunnel, street level, etc.). Mixing and matching the different options within those categories provided an opportunity to consider hundreds of reasonable possibilities for improving transportation and transit in Honolulu. But Defendants’ FEIS contains a detailed evaluation of just three action alternatives. AR 000247 at 000331-37. Worse still, the three alternatives are essentially identical. In fact, the only difference between them is a short (approximately 4 miles) segment where two of the alignments slightly diverge. Id. That is facially unreasonable. See, e.g., Friends of Yosemite Valley, 520 F.3d at 1039 (range of alternatives unreasonable where five action alternatives 28 A fair reading of the EIS suggests that the purpose of government action here is simply to improve transit options in and around Honolulu. - 55 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 66 of 86 PageID #: 6339 proposed similar outcomes); California v. Block, 690 F.2d 753, 765-69 (9th Cir. 1982) (range of alternatives unreasonable where alternative forest plans would preserve similar amounts of wilderness). If Honolulu’s transportation problems are broad and complex enough to justify a 20-mile, $5.5 billion elevated heavy rail line, they must also be broad and complex enough give rise to a true range of reasonable alternatives. Defendants’ failure to “[r]igorously explore and objectively evaluate all reasonable alternatives” manifested itself in a number of different decisions, each of which violated NEPA. 40 C.F.R. § 1502.14. As explained in greater detail below, Defendants (1) impermissibly relied on the City’s AA to reject reasonable alternatives before the NEPA process ever began; (2) arbitrarily and capriciously refused to consider the MLA; (3) impermissibly limited their consideration of alternatives to “steel wheel on steel rail” technology; and (4) impermissibly refused to consider alternatives requiring action by the City Council. Both the resulting EIS and the process for getting to that EIS are legally inadequate. a) Defendants Impermissibly Relied On The City’s Early Planning Efforts SAFETEA-LU allows FTA and local governments to undertake early planning efforts to analyze alternatives to proposed transit projects. See 23 U.S.C. § 139(f)(4). But there are two important limits on the use of such alternatives analyses for NEPA purposes. First, SAFETEA-LU requires that - 56 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 67 of 86 PageID #: 6340 the FTA guide the preparation of, independently evaluate, and approve any document that will be used for compliance with NEPA. 23 U.S.C. § 139(c)(3). Second, the Department of Transportation mandates that the results of an early planning effort to analyze alternatives can only be carried forward into the NEPA process for preparing an EIS if “those results [are] subjected to public and interagency review and comment during the scoping of the EIS.” AR 022836 at 022850. Defendants have identified the City’s early planning efforts to analyze alternatives (referred to in the FEIS as “screening” and “alternatives analysis”) as the basis for eliminating virtually all potential alternatives to the Project. For example, they claim that the City’s AA precluded detailed consideration in the EIS of alternatives involving the expansion of existing transit (largely bus) service. See AR 000247 at 000321, 000323-24 (“transportation system management” alternative). They claim that the City’s early planning efforts precluded detailed consideration in the EIS of alternatives involving managed lanes. AR 000247 at 000324-27. And they claim that the City’s early planning efforts precluded detailed consideration in the EIS of more than 70 different transit routes, including numerous options for traversing the historic portions of downtown Honolulu. AR 000247 at 000322 (claiming that 75 alignment options were evaluated during planning efforts); 000331-37 (FEIS considers essentially-identical alignments). - 57 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 68 of 86 PageID #: 6341 Defendants’ reliance on the City’s AA is improper. First, FTA did not guide the preparation of, independently evaluate, or approve the City’s AA process or the documents memorializing the results of that process. See, e.g., AR 009434-554 (AA Report), 009556- 683 (AA Screening Memo). Therefore, those analyses and documents cannot be used as the basis for subsequent actions and decisions under NEPA. 23 U.S.C. § 139(c)(3). And they certainly cannot be used as the basis for Defendants to avoid “the heart” of an EIS. Id.; see also 40 C.F.R. § 1502.14 (alternatives analysis is “the heart” of an EIS); Alaska Wilderness, 67 F. 3d at 729 (explaining fundamental importance of alternatives analysis under NEPA). Second, the results of the City’s AA — that is to say, the series of documents memorializing the City’s conclusions — were not “subjected to public and interagency review during the EIS scoping process,” as required by the Department of Transportation. See AR 009434-554 (AA Report), 009556- 683 (AA Screening Memo); AR 022836 at 022850. In fact, the Federal Register notice announcing the preparation of the EIS explicitly discouraged public comments on the results of the AA planning efforts by noting that Defendants would not consider any Project alternatives “previously evaluated and eliminated” by the City. AR 009696 at 009699. In other words, “no comments on the AA documents, please.” Id.; see also AR 000247 at 002084- - 58 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 69 of 86 PageID #: 6342 87(response to comments on DEIS refuses to reconsider alternatives eliminated during City’s AA process). b) Defendants Arbitrarily And Capriciously Refused To Consider The MLA One of the Project alternatives improperly eliminated during the City’s early planning efforts was Plaintiff Honolulutraffic.com’s MLA. AR 000247 at 000321. For the reasons explained above, Defendants’ reliance on the City’s AA was arbitrary and capricious in and of itself. See § V.D.2.a, above. But their decisionmaking with respect to the MLA also violated NEPA in two additional respects: (1) the City’s original decision to eliminate the MLA from detailed consideration was based on flawed information and arbitrary and capricious analysis; and (2) Defendants’ subsequent refusal to reconsider the City’s decision to eliminate the MLA from detailed consideration was also arbitrary and capricious. (i) The City’s Original Decision To Eliminate The MLA From Detailed Consideration Was Arbitrary And Capricious Honolulutraffic.com proposed the MLA during the City’s AA process. AR 016601 at 016715-27. The proposal involved a two-lane reversible roadway between Pier 16 (just west of downtown Honolulu, outside the historic downtown core) and Waikele (a few miles east of Kapolei). AR 016601 at 016720. Buses and vanpools would use the MLA for free, while other vehicles would electronically pay a toll calculated to keep the roadway - 59 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 70 of 86 PageID #: 6343 full but free-flowing. Id. Honolulutraffic.com submitted detailed information about the performance of such a system (supported by a 3-page list of sources) as well as a set of notes explaining that the MLA could be (1) expanded in width to allow for three lanes and/or (2) expanded in length to the west. AR 016601 at 016720-27. Honolulutraffic.com also noted with concern the City’s apparent efforts to create a “straw man” version of the MLA. AR 016601 at 016722-23. As Honolulutraffic.com pointed out, this approach seemed “designed to make the rail transit line look good in comparison.” AR 016601 at 016723. Honolulutraffic.com’s fears were well-founded. While claiming to analyze the MLA, the City instead evaluated a very different alternative. For reasons never fully explained, the City’s evaluation assumed the removal of existing carpool lanes (thereby offsetting many of the benefits the MLA would provide). See AR 017222 at 017223. Moreover, the City wildly over- estimated the cost of managed lanes; refused to implement the recommendations of its own Transit Task Force for developing a reasonable managed lanes proposal; failed to consider the possibility (raised in Honolulutraffic.com’s original MLA proposal) of building a three-lane managed lanes facility; and incorrectly assumed that managed lanes would not be eligible for federal funding. See AR 017157 at 017222-27 (detailing and documenting errors in City’s analysis), 070839 at 070878-79 (Task Force - 60 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 71 of 86 PageID #: 6344 recommendations). Put simply, the City’s “analysis” of the MLA was the very definition of arbitrary and capricious decisionmaking. See, e.g., Motor Vehicle Manufacturers, 463 U.S. at 43 (implausible decisions, failure to consider important information, reliance on irrelevant information all arbitrary and capricious); Southeast Alaska Conservation Council, 649 F.3d at 1057 (arbitrary and capricious to reject alternative based on questionable cost estimates), Natural Resources Defense Council, 421 F.3d at 813-14 (arbitrary and capricious to reject alternatives based on flawed economic analysis and inaccurate interpretation of technical data). Indeed, the City’s errors were so egregious that they attracted the attention of the Tampa-Hillsborough County (Florida) Expressway Authority, which had previously built a managed lanes facility. See AR 017157 at 017245. The Authority’s Director of Planning penned an extraordinary 4-page open letter to the citizens of Honolulu, which began as follows: “Recent comments in the Honolulu Advertiser by the chief planner of Honolulu call into question the objectivity of the City and its consultants in their performance of a very expensive transportation alternatives evaluation being mostly paid for by the federal government. As the public official responsible for planning Tampa’s elevated Reversible Express Lanes project, I am astonished that a Hawaiian public official would intentionally misrepresent the facts - 61 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 72 of 86 PageID #: 6345 associated with the cost and operation of our project and how a similar [managed] lane project might provide true congestion relief for Honolulu at an affordable price. AR 017157 at 017245 (emphasis original). It bears repeating that this statement came from the Planning Director of a public agency in another part of the country, an accredited professional without any personal stake in the feasibility of the MLA. (ii) Defendants’ Refusal to Reconsider The City’s Decision To Eliminate The MLA From Detailed Consideration Was Also Arbitrary And Capricious. The Federal Defendants then compounded the problem by refusing to reconsider the City’s decision to exclude the MLA from detailed consideration in the EIS. Honolulutraffic.com twice requested that the MLA be re- considered. AR 071958; AR 000247 at 002018-31. Defendants refused to do so, citing the City’s early planning efforts. AR 000247 at 002084-87. However, the Administrative Record contains considerable evidence that the MLA is, in fact, reasonable and should therefore have been fully evaluated in the EIS. See 40 C.F.R. § 1502.14; Southeast Alaska, 649 F.3d at 1056-57 (failure to address a reasonable alternative renders an EIS inadequate). For example: • FTA staff concluded that the MLA “appears on its fact to be reasonable” and is the product of “substantial thought” (AR 151155); • FTA recommended that the MLA be “fully considered…through the - 62 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 73 of 86 PageID #: 6346 EIS” (AR 151149); • FTA recognized that the MLA is supported by “the correct milestones and technical methodology” (AR 151052); • FTA explicitly told the City that managed lanes “are eligibile for Federal-aid Highway funding” and “thus, they would fall within a ‘reasonable’ range of alternatives, as required by NEPA, absent any physical or functional reason” (AR 150902); and • The City’s own Transit Advisory Task Force provided detailed recommendations for addressing perceived “physical or functional” aspects of the MLA, but those recommendations were never followed (AR 070839 at 070878-79). Under these circumstances, Defendants’ failure to reconsider the City’s decision to exclude the MLA from the EIS was arbitrary and capricious. c) Defendants Impermissibly Limited Their Consideration Of Alternatives To Steel Wheel On Steel Rail Technology Defendants also violated NEPA by impermissibly limiting the range of alternatives evaluated in the EIS to “steel wheel on steel rail” technology. The City’s AA process identified several potentially-feasible technologies to meet the Project’s purpose and need, including “steel wheel on steel rail,” rubber-tired guided transit vehicles, magnetic levitation (or “maglev”) systems, and monorails. See, e.g., AR 009434 at 009467 (listing technologies), 009473 (Project “could use a range of fixed guideway technologies”). There is evidence in the administrative record that technologies such as maglev and monorail have fewer environmental impacts - 63 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 74 of 86 PageID #: 6347 than “steel wheel on steel rail.” See, e.g., AR 022575 at 022682 (FTA noise guidance reports maglev noise levels lower than steel wheel on steel rail). But “steel wheel on steel rail” is the only technology alternative evaluated in the EIS. AR 000247 at 000333-38. Defendants attribute the absence of other technology alternatives in the EIS to the City’s 2008 Panel of Experts. AR 000247 at 000283, 000331. Indeed, the FEIS explicitly states that the 2008 Panel of Experts “resulted in the City establishing steel wheel operating on steel rail as the technology to be evaluated for the Project.” Id. Defendants’ approach to “evaluating” technology alternatives violates NEPA. The 2008 Panel of Experts considered only performance, cost, and reliability; it did not consider the environmental advantages and disadvantages of different technologies. AR 000247 at 000331. But the very purpose of evaluating alternatives under NEPA is to “present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by decisionmakers and the public.” 40 C.F.R. § 1502.14; see also 42 U.S.C. § 4332(2)(C) (statutory alternatives analysis requirement); Alaska Wilderness, 67 F. 3d at 729 (fundamental purposes of alternatives analysis). A limited, technical review conducted by a panel of appointed experts cannot substitute for the rigorous, objective, agency-driven evaluation of environmental issues NEPA requires. Id. - 64 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 75 of 86 PageID #: 6348 d) Defendants Impermissibly Refused To Consider Alternatives Requiring Action By The Honolulu City Council Defendants also violated NEPA by refusing to consider Project alternatives requiring action by the Honolulu City Council, a violation best exemplified by their failure to consider in the EIS any alternative to the Project’s route past the Federal office building within which the United States District Court for the District of Hawaii is located. The EIS considers just one route through downtown Honolulu. AR 000247 at 000343, 000689 (maps). That route — which follows Nimitz Highway to Halekauwila Street — requires that the Project be built within approximately 45 feet of the third- and fourth-floor windows of the Federal building. Id.; AR 000247 at 000931. During the public comment period on the Draft EIS, eight of the nine federal judges then sitting in the United States District Court for the District of Hawaii (joined by the United States Marshal for the District of Hawaii) submitted a letter expressing significant concerns about the Project and requesting that Defendants consider an alternative to the Nimitz-to-Halekauwila route. AR 000247 at 000930-34; see also 000994-996 (GSA not notified of Project). Among other things, that letter reports a conversation between the judges and the Chief of the City’s Rapid Transit Division in which the City took the position that alternative alignments were unlikely to be considered because they would require approval from the - 65 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 76 of 86 PageID #: 6349 Honolulu City Council. AR 000247 at 000930-34. No alternative to the Nimitz-to-Halekauwila route was ever added to the EIS. AR 000247 at 000333-38 (FEIS alternatives); 000937-38 (City’s response to comments calls Nimitz-to-Halekauwila route “preferable,” refuses to add alternative to EIS). Defendants had an obligation to “rigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a). NEPA’s implementing regulations explicitly provide that this obligation extends to “reasonable alternatives not within the jurisdiction of the lead agency.” 40 C.F.R. § 1502.14(c); see also Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800, 814 (9th Cir. 1999) (NEPA requires consideration of reasonable alternatives outside lead agency’s existing legal authority); “Forty Most Asked Questions Concerning NEPA Regulations,” 46 Fed. Reg. 18026 at 18027 (March 17, 1981) (alternative requiring change of local law must be evaluated if reasonable). Therefore, it was arbitrary, capricious, and a violation of NEPA for Defendants to rely on the (reported) need for City Council action to avoid considering alternatives to the Nimitz-to- Halekauwila route. Id. 3. Defendants Failed Properly To Evaluate The Environmental Consequences Of The Project And Alternatives Thereto (Count 3) NEPA requires federal agencies to evaluate the environmental consequences of their proposed actions. 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ - 66 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 77 of 86 PageID #: 6350 1502.16, 1508.8, 1508.27. This analysis must address direct impacts, indirect impacts, and cumulative impacts and serves as the basis for comparing alternative courses of action. 40 C.F.R. §§ 1502.16, 1508.8. Defendants failed properly to account for the environmental impacts associated with construction of the Project. For example, their EIS does not account for the potential impacts on air quality associated with the fabricating and installing the large sections of concrete needed for the guideway. AR 000247 at 000551-54. Nor does it account for the air emissions associated with transporting material to the areas where the guideway will be built. Id. Both of these impacts are reasonably foreseeable. Therefore, they should have been identified, evaluated, and disclosed to the public. 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1502.16, 1508.8, 1508.27. Defendants also failed properly to account for the indirect and cumulative effects of the project on land use and growth. The Project is quite explicitly designed to promote growth in the agricultural areas west of Honolulu. AR 000247 at 000313. The EIS asserts that these areas are “less likely to develop” without the Project. Id. The EIS also notes that the Project will “influence the distribution, rate, density, and intensity of development.” AR 000247 at 000657. But the document does not provide meaningful information about how that influence will affect environmental resources. For that reason, too, it fails to provide the “hard look” that NEPA requires. See, - 67 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 78 of 86 PageID #: 6351 e.g., Davis v. Mineta, 302 F.3d 1104, 1122-23 (10th Cir. 2002) (failure to consider effect of providing access to “unspoiled” areas). 4. Defendants Impermissibly Segmented Their NEPA Analysis (Count 4) NEPA’s implementing regulations emphasize the importance of “mak[ing] sure the proposal which is the subject of an [EIS] is properly defined.” 40 C.F.R. § 1502.4(a). Among other things, they direct that “[p]roposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action, shall be evaluated in a single impact statement.” Id. (emphasis added); see also 40 C.F.R. § 1508.25(a)(1). The purpose of this requirement is to prevent agencies from artificially “segmenting” their environmental analyses, thereby hiding the true impacts of and alternatives to proposed actions. See Thomas v. Peterson, 753 F. 2d 754, 758 (9th Cir. 1985) (segmentation allows agencies to minimize environmental impacts); Daly v. Volpe, 514 F.2d 1106, 1110 (9th Cir. 1975) (project must be defined so as to assure adequate opportunity to consider alternatives); see also Alpine Lakes Protection Society v. Schalpfer, 518 F. 2d 1089, 1090 (9th Cir. 1975) (“close scrutiny” required in order to “prevent the policies of NEPA from being nibbled away by multiple increments”). For many years, Defendants defined the Project as a 25- or 30-mile network of rail lines connecting Kapolei, the University of Hawaii, and Waikiki. See, e.g., AR 009700 (2005 Federal Register notice); AR 009556 at - 68 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 79 of 86 PageID #: 6352 009566-68 (2006 Alternatives Screening Memo), AR 9696 (2007 Federal Register notice); AR 033642 at 033654 (2008 technical report). But the EIS evaluates only a subset of that network — a 20-mile section from East Kapolei to Ala Moana Center, just east of downtown Honolulu — as “the Project.” See AR 000247 at 000340-43 (Project maps). In doing so, Defendants artificially and improperly segmented environmental review of the Project. The entire network of rail lines is quite clearly “related…closely enough to be, in effect, a single course of action.” 40 C.F.R. § 1502.4(a). Indeed, the University of Hawaii and Waikiki lines do not have any independent utility; they only make sense as part of the Project. See, e.g., Hammond v. Norton, 370 F. Supp. 2d 226, 247-53 (D.D.C. 2005) (improper segmentation where one of two pipeline projects lacked independent utility). Accordingly, the entire 25-mile rail network should have been evaluated as a single project in a single EIS. Id.; see also 40 C.F.R. § 1508.25(a)(1)(iii) (“interdependent parts of a larger action that depend on the larger action for their justification” should be discussed in the same impact statement). There is no reason to believe Defendants could not have done so. The University of Hawaii and Waikiki lines have already been the subject of detailed economic and engineering studies. Indeed, Defendants’ plans for - 69 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 80 of 86 PageID #: 6353 those lines appear to be just as concrete and just as foreseeable as is the Project. By segmenting their environmental review of the Project, Defendants understated the environmental consequences of the rail system. For example, the EIS fails to evaluate air emissions and noise impacts associated with the full rail network. See, e.g., AR 000247 at 000551-54 (air quality), 000554-64 (noise), 000655-78 (cumulative impacts). Similarly, while the EIS includes a vague statement about the visual effects of the Waikiki extension being “similar” to those of the Project, Defendants did not make a meaningful attempt to disclose the visual impacts of the rail system as a whole. AR 000247 at 000501-551 (visual impacts analysis), 000670 (cumulative impacts analysis). Indeed, that may well have been their intent. See, e.g., AR 072134 at 072137 (members of Honolulu City Council report that “the branch to Waikiki was intentionally left out of the [EIS]…to avoid having to address the negative environmental impacts”). Defendants’ segmentation also impermissibly limited the range of alternatives for linking the rail system’s proposed termini (Kapolei, University of Hawaii, and Waikiki). Once an elevated heavy rail line has been built from Kapolei to Ala Moana Center, there will not be any real alternative to using elevated heavy rail for the remainder of the system. That is particularly problematic for a transportation project like this one. See, e.g., Named - 70 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 81 of 86 PageID #: 6354 Individual Members, 446 F. 2d at 1023 (artificial segmentation of highway project “make[s] a joke of” the alternatives requirement).29 In essence, Defendants have precluded any meaningful analysis of transit alternatives for the University of Hawaii and/or Waikiki. Id. E. Defendants Violated NHPA NHPA applies to federal “undertakings,” defined as “a project, activity, or program funded in whole or in part under the…jurisdiction of a Federal agency, including…those carried out with Federal financial assistance.” 36 C.F.R. § 800.16(y). Defendants admit that the Project is an undertaking and is therefore subject to NHPA. See AR 000030 at 000083. The procedural requirements of NHPA prohibit federal agencies from approving an undertaking without first (1) assessing the undertaking’s effects on historic properties and (2) developing and evaluating “alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties.” See 36 C.F.R. §§ 800.5 (assessing 29 The Named Individual Members case addressed segmentation in the context of Section 4(f). Named Individual Members, 446 F.2d at 1023. The Fifth Circuit confronted the question “Whether the Secretary may take a single ‘project’ and divide it into ‘segments’” for purposes of securing regulatory approval. The Department of Transportation proposed to segment a highway project such that the road would be built in segments on either side of a 4(f)- protected park, leaving for a later day the “question” of how to connect the segments. Id. The same sort of logic is at work in this case. Defendants may pretend that they will consider a full range of alternatives to expanding elevated heavy rail to Waikiki. But just as the highway in the Named Individual Plaintiffs was clearly designed to go through a protected park, so too is the elevated heavy rail system at issue in this case clearly designed to extend to Waikiki. - 71 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 82 of 86 PageID #: 6355 effects), 800.6 (avoiding, minimizing, or mitigating adverse effects). The “adverse effects” to be accounted for include both direct effects and indirect effects. 36 C.F.R. § 800.5(a). The Project involves construction of a 20-mile, 3-story elevated heavy rail line through historic areas of Honolulu. As Defendants admit, the construction of the rail line will cause adverse effects on at least 33 historic resources. AR 000030 at 000085. The Project is also designed to induce “transit-oriented development” and “transit-supportive development” at and near the 21 stations along the rail line. AR 000247 at 000657-58 (development); AR 0000247 at 000340-42 (showing rail stations). Such development is expected to include “office space and multi-story residential buildings” as well as new communities of “retail, high-density residential, [and] mixed use” features. See AR 000247 at AR 000657. Thus, the Project will also have an indirect effect on historic resources near rail stations. See id.; 36 C.F.R. §§ 800.5(a)(2)(ii) (adverse effects include changes to an historic resource’s setting), 800.5(a)(2)(v) (adverse effects include introduction of visual, atmospheric, or audible elements). In purported compliance with NHPA, Defendants prepared and approved a Programmatic Agreement. See AR 000040, 000083-0000228. The Programmatic Agreement and its appendices evaluate direct effects of the - 72 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 83 of 86 PageID #: 6356 Project on historic properties. AR 000030 at 000166-185. And, in recognition of the Project’s potential to indirectly effect historic resources, the Agreement also includes a specific provision designed to avoid, minimize, or mitigate the effects of Project-induced development within the Chinatown Historic District and the Merchant Street Historic District. AR 000030 at 000086; 36 C.F.R. § 800.6 (avoiding, minimizing, or mitigating adverse effects). But the Programmatic Agreement fails to include equivalent provisions for other historic resources. AR 000030 at 000083-113. That is a significant failure. There are sizable clusters of historic resources around the proposed Pearl Harbor Naval Base, Kahili, Iliwei, Downtown, and Civic Center rail stations. AR 000247 at 000687-88. The EIS concludes that considerable Project-induced development is reasonably foreseeable likely in at least some of those areas. AR 000247 at 000657-59 (Kahili, Iliwei, Civic Center). And such development would have an adverse effect on historic resources. See id. (development near rail stations); 36 C.F.R. § 800.5 (defining adverse effects). Put simply, while Defendants have recognized that the Project-related growth could have an indirect adverse effect on historic resources, they have only sought to address that possibility for two of the 20-some historic resources under threat. 000030 at 000083-113. Therefore, their approval of the Project was arbitrary, capricious, and in violation of NHPA. 36 C.F.R. §800.6 (requiring efforts to avoid or minimize adverse effects); Motor Vehicle - 73 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 84 of 86 PageID #: 6357 Manufacturers Association, 463 U.S. at 43 (failure to consider “an important part of the problem” is arbitrary and capricious).VI. CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Motion for Summary Judgment be granted. - 74 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 85 of 86 PageID #: 6358 Dated: April 6, 2012 Respectfully submitted, /s/ Michael J. Green Michael J. Green (HI Bar No. 4451) Attorneys for Plaintiffs HonoluluTraffic.com, Cliff Slater, Benjamin J. Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation, Randall W. Roth, and Dr. Michael Uechi. /s/ Nicholas C. Yost Nicholas C. Yost (CA Bar No. 35297) Matthew G. Adams (CA Bar No. 229021) SNR Denton US LLP 525 Market Street, 26th Floor San Francisco, CA 94105-2708 Telephone: (415) 882-5000 Facsimile: (415) 882-0300 Attorneys for Plaintiffs HonoluluTraffic.com Cliff Slater, Benjamin J. Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation, Randall W. Roth, and Dr. Michael Uechi. - 75 -

Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 86 of 86 PageID #: 6359 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations set forth in the Court’s Rule 16 Scheduling Order because the brief contains 17,117 words, excluding the parts of the brief exempted by local rule. This brief complies with the typeface requirements of LR10.2 (a) because this brief has been prepared in proportionately spaced typeface using Microsoft Word 2003, in 14-point Times New Roman. /s/ Nicholas C. Yost

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

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MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Document Transcript